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60.US.108
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Where a steamer ran down and sunk a schooner which was at anchor in a dark and rainy night, the schooner was to blame for having no light, which, at the time of collision, had been temporarily removed -for thp purpose of being cleansed. But, inasmuch as the schooner was in a place much frequented as a harbor in stormy weather, and of which the steamer was chargeable with knowledge, it was the duty of the steamer to slacken her speed on such a night, if not to have avoided the place altogether, which could easily have been done. The fact that the steamer carried the U. S.. mail, is no excuse for her proceeding at such a rapid rate. The case must therefore.be remanded to the Circuit Court, to apportion the loss. Where the decree was for a less sum than two thousand dollars, the appeal must be dismissed for want of jurisdiction.
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This is an appeal from a decree of the Circuit Court of the United States for the eastern district of the State of Louisiana, sitting in admiralty. The libel was filed in the District Court to recover the value of a quantity of merchandise on board the schooner Ella, which was sunk in a collision with the steamer on Lake Borgne, some six or eight miles east of the light-ship in Pass Mary Ann, while at anchor on the night of the 5th February, 1853. The District Court rendered a decree charging the steamer with the loss. On an appeal, the Circuit Court reversed the decree, and dismissed the libel, on the ground that the schooner was in fault in not having a light in the fore-rigging, or in any other conspicuous place on the vessel, to give notice of her position to the approaching steamer. The night was dark and rainy, and the wind blowing fresh from north-northwest. A proper light had been hung in the fore-rigging early in the evening, and kept there till near the time of the collision, which happened about half-past eleven o'clock. One of the hands had taken the lamp down to wipe off the water that had collected upon the glass globe, so that it might shine brighter. While he was standing midships, wiping the lamp, he heard the approach of the steamer, and immediately placed it on the top of the cook-house. The collision soon after occurred. The fault lies in removing the lamp for a moment from the fore-rigging to midships. If it was not practicable to wipe it in the rigging, another light should have been placed there on its removal. The time of the removal may be, as happened in this case, the instant when the presence of the light was most needed to give warning to the vessel approaching. All the hands examined who were on board the steamer deny that they saw any light at the time on the schooner. We agree, therefore, with the court below, that the schooner was in fault. But it is insisted, on the part of the appellants, that the steamer was also in fault on account of her rate of speed at the time, regard being had to the darkness of the night and the character of the channel she was navigating. The schooner, on coming out of the Pass Mary Ann, towards evening met a strong head wind and swell of the lake, and after pursuing her course some four or five miles, anchored under Cat Island. There were several other vessels at anchor at the time in that vicinity. Some of the witnesses state that the place is used as a harbor for schooners and other vessels navigating the lake in rough weather, as it is somewhat sheltered from the winds; and the number of vessels at anchor in the neighborhood, at the time of the collision, would seem to confirm this statement, and there is no evidence in the case to the contrary. There is conflicting evidence on a point made by the appellant, that the steamer was out of the direct and usual course of steamers from Pass Mary Ann to Mobile. The weight of it is, that this course was a mile and a half or two miles north of the place where the schooner lay. But we do not attach much influence to this fact, as in the open lake there was no very fixed track of these vessels within the limit mentioned. There is also some little discrepancy of the witnesses as to the darkness of the night. But the clear weight of it is, that at the time of the collision it was very dark and rainy, and the wind blowing fresh. The witnesses on the part of the steamer are very explicit on this part of the case. The pilot says, the night was very dark, and drizzling rain. The captain, that the night was dark and cloudy, and the wind blowing briskly. The engineer, that the night was so dark, a vessel of the size of the schooner could not be seen at all till upon her, without a light; and yet he says there was nothing in the weather to prevent her running at her usual speed. The steamer was going, at the time of the collision, at the rate of from nine to ten miles an hour. The pilot says, at her usual rate of speed, or at the rate of eight or nine knots. The engineer, not exceeding the usual rate of speed, which, it appears, averages about ten miles. The mate states, that the speed at the time was between ten and eleven miles. Now, considering the darkness of the night and state of the weather, and that the steamer was navigating a channel where she was accustomed to meet sailing vessels engaged in the coasting trade between Mobile and New Orleans and the intermediate ports, we cannot resist the conclusion that the rate of speed above stated was too great for prudent and safe navigation; and this, whether we regard the security of the passengers on board of her, or the reasonable protection of other vessels navigating the same channel; and especially under the circumstances of this case, in which she was bound to know that the place where this schooner lay was a place to which vessels in rough and unpropitious weather, navigating this channel, were accustomed to resort for safety. The case presented is much stronger against the steamer than that of casually meeting the schooner in the open waters of the lake. She was at anchor with other vessels in an accustomed place of security and protection against adverse winds and weather, familiar to all persons engaged in navigating these waters. The place and weather, therefore, should have admonished the steamer to extreme care and caution, and it is, perhaps, not too much to say, should have led to the adoption of a course that would have avoided the locality altogether. The weight of the evidence is, even if she had pursued the most direct course from Pass Mary Ann to Mobile, it would have had this effect: she would have passed north of this cluster of vessels anchored under the shelter of the island. Neither is it at all improbable, if the speed of the steamer had been slackened, and she had been moving at a reduced rate, with the care and caution required by the state of the weather, that she would have seen the light on the schooner in time to have avoided her. The proof is full that there was a light on board from the time she cast anchor till the happening of the disaster. But, at the critical moment, it was in the hand of the seaman at midships, instead of at a conspicuous place in the rigging. The light must have been in some degree visible, as all the sails of the vessel were furled, and was placed on the top of the cook-house as soon as the wet and moisture were wiped from the glass. The admiralty in England have repeatedly condemned vessels holding a rate of speed in a dark night, under circumstances like the present, and so did this court in the case of the steamer New Jersey, (10 How., 568.) The Rose, 2 Wm. Rob., 1; The Virgil, Ib., 201. It has been urged, on behalf of the steamer, that she carried the mail, and that a given rate of speed was necessary in order to fulfil her contract with the Government. This defence has been urged in similar and analogous cases in England, but has been disregarded, and indeed must be, unless we regard the interest and convenience of the arrival of an early mail more important than the reasonable protection of the lives and property of our citizens. Having arrived at the conclusion that the steamer was in fault, the case is one for the apportionment of the loss. The decree must therefore be reversed, and the case remitted to the court below, for the purpose of carrying this apportionment into effect. POOLEY, NICOLL, & Co., v. THE STEAMER ST. CHARLES. The decree of the court below is reversed, for the reasons given in the case of E. G. Rogers & Co. v. the same steamer, and remitted to the court for an apportionment of the loss. v. THE STEAMER ST. CHARLES. The appeal in this case is dismissed for want of jurisdiction; the decree in the court below being for a sum less than $2,000. JOHN HURLEY & Co. v. THE STEAMER ST. CHARLES. The appeal is dismissed for want of jurisdiction; the decree of the court below being for a sum less than $2,000. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is the opinion of this court that the appeals of Brooks & Randolph, and Hurley & Co., should be dismissed for the want of jurisdiction, on the ground that the amount in controversy in each of the said cases is less than $2,000; and it is also the opinion of this court that the steamer St. Charles was in fault, and that the decree of the said Circuit Court in the cases of E. G. Rogers & Co., and Pooley, Nicoll, & Co., should be reversed, and the cause remanded for an apportionment of the loss on these two appeals. Whereupon, it is now here ordered, adjudged, and decreed, by this court, that the appeals of Brooks & Randolph, and of Hurley & Co., be and the same are hereby dismissed for the want of jurisdiction; and that the decree of the said Circuit Court in the cases of E. G. Rogers & Co., and Pooley, Nicoll, & Co., be and the same are hereby reversed with costs; and that this cause be and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this court, and as to law and justice shall appertain.
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60.US.239
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by the 1st day of December, 1854, which the court refused to do. In this, we think, there was error. On a contract where taitm laew d oones thneo ta gcroenesmtietuntte; wi hts e re es s te hn ec e p, e rt fh oe rr me a c na cn e b we a sn o n or te c wo iv ther iny the time limited. A subsequent performance and acceptance by the defendant will authorize a recovery on a quantum meruit. It is dificut to perceive any satisfactory mode by which the defendant in the Circuit Court could recoup his damages for the failure of the plaintiff to perform in that action, or by bringing another suit..*As a stock and bond holder, his damages would be remote and contingent. To ascertain the general damage of the company by the failure, and distribute that amount among the members of the company in proportion to their interests, would seem to be the proper mode; and this would be complicated, and not suited to te action of-a jury. The judgment of the Circuit Court is reversed, with costs.
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This is an appeal from a decree of the Circuit Court of the United States for the southern district of New York, sitting in admiralty. Between sixty and seventy libels had been filed in the District Court by material men—men who had furnished supplies; also, by shippers of goods and passengers—against the ship Angelique, of which S. W. Jones was master. These several proceedings were commenced in July and August, 1853, and interlocutory decrees, condemning the vessel, were entered in all of them, and final decrees in some six or seven. One of the parties obtaining a final decree issued execution, and the vessel was sold, and the proceeds brought into court. The vessel sold for $6,900. In this stage of these proceedings, the present appellants filed their libel against the proceeds of the ship in court, setting, forth, that, being the owners of the vessel, they sold and delivered her to one A. Pellitier, for the sum of $15,000, on the 7th May, 1853; that of this sum a promissory note of the vendee was given for $5,000, payable in six months, which was secured by a mortgage upon a moiety of the vessel to the vendors, which was duly recorded, in pursuance of the act of Congress, on the 9th May, 1953, in the office of the collector of customs of the port of New York, where the vessel was then registered, and a copy of the mortgage was also filed in the office of the register of deeds of the city and county of New York. The libel prayed process against a moiety of the proceeds of the vessel in court, claiming the same under, and by virtue of, the mortgage. Several of the libellants, who had obtained either final or interlocutory decrees, above referred to, appeared, and put in answers to this libel of the mortgagees, setting up their proceedings, and the decrees condemning the vessel to pay their respective claims to the proceeds, in defence. The case went to a hearing, when the District Court decreed to dismiss the libel. On an appeal, the Circuit Court affirmed the decree. The libel filed in this case is a libel simply to foreclose a mortgage, or to enforce the payment of a mortgage, and the proceeding cannot therefore be upheld within the case of the John Jay, heretofore decided by this court. (17 How., 399.) The proper course for the mortgagees was to have appeared as claimants to the libels filed against the vessel, in which the questions presented in the case might have been raised and considered; or, on the sale of the vessel, and the proceeds brought into the registry, they might have applied by petition, claiming an interest in the fund; and if no better right to it were shown than that under the mortgage, it would have been competent for the court to have appropriated it to the satisfaction of the claim. As the fund is in the custody of the admiralty, the application must necessarily be made to that court by any person setting up an interest in it. This application by petition is frequently entertained for proceeds in the registry, in cases where a suit in the admiralty would be wholly inadmissible. The decree of the court below is therefore right, and should be affirmed.
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60.US.252
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The act of Congress of 1820 and regulations of the General Land Office of 181 direct the manner in which purchases of public land shall be authenticated by the registers and receivers of the land offices. Where the receiver gave a receipt in the name of John Bell, and the register made two certificates of .purchase, one in the name of John Bell and the other in the name of James Bell, the circumstances of the case show that the latter was an error which was properly corrected by the Commissioner of the General Land Office in the exercise of his supervisory authority; and he had a right to do thIs, although a patent had been issued to James Bell, which had been reclaimed from the register's office, and returned to the General Land Office to be cancelled. The Supreme Court of Louisiana having decided against the validity of the patent issued to John Bell, this court has jurisdiction under the twenty-fifth section of the judiciary act to review that judgment; and the ground of the decision of the State court sufficiently appears upon the record.
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THIS case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the judiciary act. The facts in the case are stated in the opinion of the court. It was argued by Mr. Baxter and Mr. Johnson for the plaintiff in error, and by Mr. Lawrence and Mr. Taylor for the defendants. The following notice of the points for the plaintiff in error is taken from the brief of Mr. Baxter: I. John Bell was the purchaser of the land from the United States, and James Bell had no right or interest in it. The receiver's receipt and his certificate prove the purchase was made by John Bell, and vested in him all the inchoate title which could be vested by the purchase. It was the duty of the register to issue a certificate conforming to the receiver's receipt. On this receipt, no certificate of purchase could lawfully be given to any other person than John Bell or his assignee; and an assignment, to be acted on by the officers of the land office, must be executed before the register, or a judge, or justice of the peace; must be preserved in the register's office until certificate granted, and must then be sent to the Department. And in the certificate to the assignee the name of the original purchaser must be inserted throughout, except in the last entry, preceding the words 'shall be entitled.' (See Circular to Registers of July 5, 1805, Land Laws, 2d vol., 257-'8; do. May 5, 1821, 307; do. May 29, 1820, 302; May 5, 1831, sec. 19, p. 446; sec. 32, pp. 451 and 466.) No assignment by John Bell, the purchaser, to James Bell, exists, nor is it pretended any ever was made. The insertion of the name of James Bell in the register's certificate was a mere misnomer. The cancellation of this certificate affords stringent evidence that this was a mere error, and it is confirmed by the fact that when the patent was demanded, John Bell held the certificates, on the production of which the patent was to issue. II. James Bell having no right or interest in this land, the attempted sale under the execution of St. John Fabre & Co. against James Bell was a nullity, and created no estate, right, or interest, in the supposed purchaser, Smith, or those claiming under him, and gave to him or them no right to demand a patent, either to James Bell, or to them as assignees of James Bell. Code of Louisiana, article 2,427: 'The sale of a thing belonging to another person is null. It may give rise to damages, when the buyer knew not the thing belonged to another.' Under an execution, the interest of the debtor, only, in the property can be sold. The right of a stranger to the record and proceeding will not pass thereby. III. James Bell having no title or interest in this land, and the pretended purchasers under the execution not having acquired any right or interest therein, John Bell was the only person who could be recognised by the United States as entitled to a patent, and the act of making a patent in the name of James Bell was an accident, which, if uncorrected, would defeat the contract of sale; but which, by the practice of the land office and the law of the land, might be corrected as long as the patent was in the power of the land office. And if such erroneous patent had been delivered, it might be returned and cancelled; and if the holder refuses to deliver it up to be cancelled, the United States may institute proceedings to cancel it, or may authorize the party injured to institute such proceedings in the name of the United States. (See Putnam's Case, and Opinion of Mr. Wirt, 2 Land Laws, 27-'8; Opinion of Mr. Wirt, p. 24; Master's Case, pp. 32, 34; Opinion of Mr. Butler, 86-'7; Regulations, May 4 and 6, 1836, pp. 92-'3; Opinion of Mr. Butler, pp. 123-'4.) For the common-law doctrines, reference is made to the 17th vol. Viner, p. 78, title Prerogative, letter (G b 2.) The King's grant is void in five cases: 1st. When he is misinformed. 2d. Misrecital shall avoid it. 3d. If the King be deceived in matter of fact or matter of law. 4th. Want of form. 5th. When the thing granted is in the King, or comes to him in another manner than he supposes. In Barwick's case, (5 Coke, 94,) it is said: 'And it is a maxim, that if the consideration which is for the benefit of the Queen, be it executed or be it executory, or be it on record or not on record, be not true or be not duly performed, or if prejudice may accrue to the Queen, by reason of the non-performance of it, the letters-patent are void.' In the case of the Alton Woods, (1 Coke Rep., 51 a,) it held, if the King's grant cannot take effect, according to his intent, it is void. 2 Williams Saunders's Rep., p. 72 q, note 4 to Underhill v. Devereux, where a patent is granted to the prejudice of another's right, he may have a scire facias to repeal it at the King's suit, and the King is of right to permit the person prejudiced to use his name. (Dyer, 276 b; 3 Lev., 220; Sir Oliver Butler's Case, 2 Vent., 344.) Bill in equity will lie to decree a patent to be delivered up and cancelled in a case of fraud, surprise, or gross irregularity in issuing it. (Attorney General v. Vernon, 1 Vernon's Rep., 277, 280, 281; Sawyer, Attorney General, v. Vernon, 1 Vernon's Rep., 370, 386 to 392.) In this country, the proper proceeding is probably by bill in equity; but whether by scire facias or bill in equity, is only a question of form. In either case, the same results may be attained. But the law forces no man to make a defence against conscience. A party who has wrongfully obtained a patent may surrender it to be cancelled. (Comyn's Digest, vol. 5, title Pat., letter [G,] p. 388.) 'So, if a man surrenders his patent, and it be cancelled, and a note of it endorsed, and afterwards the surrender enrolled, it shall be vacated by it.' (Dy., 167 a; R. Dy., 179 b.) In Grant v. Raymond, (6 Peters, 218,) this court held, that a patent for a useful invention might be surrendered, and a new patent issue. (See C. J. Marshall's Opinion, from page 240 to 244.) In Shaw v. Cooper, (7 Peters, 292,) the same doctrine was held. Both cases were before the act of 1836. In the case at bar, John Bell had, by his contract of purchase, the only rights which the United States could lawfully recognise and carry into patent. He applied for his patent. A patent in the name of James Bell was tendered to him. He returned it to the Land Office. According to the regulations of the Land Office and the common law, the Commissioner held the patent in the name of James Bell void, cancelled it, and issued a corrected patent in conformity with the contract of sale to John Bell. The Supreme Court of Louisiana has adjudged this cancelled patent valid, and superior to the corrected patent; and the inquiry is, shall this judgment be reversed? IV. The judgment of the Supreme Court of Louisiana in the case at bar adopts the decision of that court in Lott v. Prudhomme, (3 Rob., 294-'5-'6,) and applies it to this case, and carries it to the extent of declaring that the Commissioner of the Land Office has no right to cancel a patent which has passed the seal of the office; intimating the naked act of cancellation is a fraud, and holding that the jurisdiction of the Government of the United States over the subject is ended when the patent is sealed, and setting up the cancelled patent as superior to the corrected patent issued to pass the title of the United States. 1. We insist the Supreme Court of Louisiana erred in the proposition 'that the question whether a patent which has issued from the Land Office of the United States may be annulled for mistake or fraud, is, so far as it concerns a citizen of Louisiana, to be solved by the laws of Louisiana.' a. The State of Louisiana has no laws which regulate the grant of the lands of the United States, and no officers who can grant these lands. Lands of the United States are granted by the officers of the United States, acting under the laws of the United States. All questions of the authority of those officers, and of the conformity of their proceedings to law, must be solved by the laws of the United States. b. The United States has an interest in the sale of these lands as vendor, and may incur, by the misconduct of her officers, the responsibility of a defaulting vendor. There must therefore be, in her jurisdiction as a Government, a power to correct the errors of her officers to her prejudice, and to the prejudice of persons contracting with her. And she is not denuded of this jurisdiction when the question whether a patent issued to her prejudice is to be solved. c. In Wilcox v. Jackson, the court says, the question, whether the property has passed, is to be resolved by the laws of the United States. But fraud, laches, accident, and mistake, may so defeat the intended contract of sale, that the patent may be void, and the title not pass by it. (Alton Wood's Case, 1 Coke, 44 a, b; Magdalen College Case, 11 Coke, 72.) 2. We insist, the proposition of the Supreme Court of Louisiana, that 'the moment a patent has passed the great seal, it is beyond the power of the officers of the General Government,' is erroneous. a. This proposition seems to assume that the seal of the Land Office is analogous to the great seal of England. In England, the King is the fountain of justice, of honor, of office, and of privilege; and the great seal is the emblem of his royal authority and dignity. The powers of the court of chancery flow from the great seal. (1 Strange, 157, 158.) And all grants of land, held by the King in right of his crown, are to be under the great seal. (Lane's Case, 2 Coke's Rep., 16.) In the Land Office of the United States there is no seal analogous to the great seal. The public lands are not held jure coronae, to be disposed of as matter of royal bounty, but are held in trust for the States; (Pollard v. Hagan, 3 Howard, 212;) and are to be disposed of to purchasers, by contracts of sale, under the laws of the United States. In England there are many seals. (17 Viner, pp. 67 to 77.) If an analogy to some of the seals in England must be found, it will be best found in the case of Attorney General v. Vernon, (1 Vernon, 391.) b. The effect of a patent sealed by the recorder, and the power of the Commissioner over it, must be ascertained from our Constitution and laws. The Constitution makes it the duty of the President to take care that the laws are faithfully executed. The act re-organizing the Land Office (1 L. Laws, 553) confers on the Commissioner, under the direction of the President, the executive powers and duties prescribed by law, and appertaining to the sale and survey of the public lands, and the issuing of all patents for grants. Section 1, sect. 4, makes it the duty of the recorder, in purauance of instructions from the Commissioner, to affix and certify the seal of the Land Office, to attend to the correct engrossing and transmission of patents. The act of the recorder is a ministerial act. The system of disposing of our public lands is a system of bargain and sale. The contract is made by the purchase from the receiver; and all the steps subsequently taken in the Land Office are merely to insure to the purchaser a title to the land for which he has paid. These proceedings are all to be taken under the executive discretion of the Commissioner, acting under the direction of the President; and there must be such enlarged discretion as will protect the purchaser from accident or errors occurring in the office. The purchaser, standing in the relation of vendee, has the right to see that the title made out for him conveys the thing purchased. He cannot be compelled to accept a patent which does not give him the land which he has bought and paid for. From these relations of contracting parties it follows that the title is consummated by the delivery and acceptance of the patent. (Bagnell v. Broderick, 13 Peters, 450.) There cannot be, by any fancied analogies of the English law, a magic in the errors or even misconduct of any clerk or ministerial officer through whose hands the title may pass, which will defeat the rights of the purchaser, or prevent the President from exercising his duty of seeing that the laws are faithfully executed. We contend, then, that the practice of receiving back and cancelling patents which fail, from accident or mistake, to effect the designed sale, is legal; and the act of cancellation by the Commissioner in this case was a lawful act. The judgment of the Supreme Court of Louisiana, setting up the cancelled patent, is erroneous, and should be reversed. Mr. Lawrence for defendants in error. It appears from the record, that on the 3d of July, 1839, a certificate of purchase was issued by the register of the land office at Natchitoches, in the name of James Bell, the brother of the plaintiff in error, which certificate was transmitted by the register to the General Land Office at Washington, and upon this certificate a patent was issued to James Bell on the 10th of July, 1844, and was transmitted to the register at Natchitoches for delivery, where it remained until 1849, when it was delivered to the agent of Mr. John Bell, and by the latter was filed in the General Land Office in 1850, to be cancelled; and a patent issued in his name, upon a duplicate certificate and receiver's receipt, in his possession and in his name. In the mean time, the land had been sold under execution, as the land of James Bell, and had come by mesne conveyances to the defendants in error. I maintain that the Commissioner had no right to cancel a patent which had passed the seal, and been transmitted for delivery. It is not pretended that there is any statutory authority giving him this power. On the contrary, like all other officers of the General Government, having only so much power as is expressly conferred, and this power of cancelling being neither expressed nor necessarily implied, he could not be invested with this authority, unless, upon general principles of law, it would be incident to his office. But we find that, upon the principles of the common law, both in this country and in England, it has been constantly held that a patent which has passed the great seal can only be vacated by a scire facias, or bill in equity. In England, where letters patent are of record in the chancery, a scire facias would be proper, but here we should resort to a bill in equity. In the case of Jackson v. Lawton, (10 Johns., 24,) Chief Justice Kent, after a most elaborate examination of the authorities, both in England and this country, held, that a patent issued by mistake could not be avoided, except by scire facias, or bill in equity, or some equivalent proceeding. And this case has ever since been the leading authority on the subject. In Maryland, it was held that so long as a grant remained unrepealed by chancery, it must prevail at law against a younger grant. (2 H. and M., 141.) Now, the practice of the Department has been in accordance with these principles, and this case of Jackson v. Lawton has been acted on again and again. The Department has even refused to issue a second patent when another patent, issued by mistake, has been unrepealed. (See the opinions of Attorneys General Berrien and Legar e.) I conclude, then, that there is no statutory provision giving the power to the Commissioner; that the decisions at common law and the practice of the Department are against it. But even if the Commissioner had the naked power to cancel a patent issued by mistake, he could not do it to the injury of those who had purchased for valuable consideration, without notice. And the very possibility that there might be purchasers bona fide, without any notice of the mistake, illustrates the propriety of a bill in equity for the vacating of the patent. And no court of equity would vacate a patent, as against innocent purchasers, although it should be made manifest that it had issued by mistake. Yet this monstrous power is claimed for the Commissioner of the Land Office, that by the mere sweep of his pen, upon ex parte testimony, without any notice to others in interest, and without any record of his reasons, he may cut off, without a hearing and without a remedy, persons who have bought and paid for lands standing upon the records of his own office in the name of him whose title they have purchased. This very case illustrates the enormity of this pretension. Here were parties in possession of land which had been conveyed through several persons to them, and which was originally sold as the property of James Bell, (who had, by the way, pointed it out as his,) and in whose name it stood upon the records of the Land Office. Now, if the Commissioner, in the retired apartment of his office, could, without any notice to these parties, cancel this patent, as to them, so that they could not prove its former existence as a legal title under which they had innocently purchased and gone into possession, but should be met with the suggestion that such patent had been cancelled, and was therefore of no legal effect, why, then, without any fault of their own, they could, without a hearing, be deprived of what they had bona fide bought, and were in the actual possession of, by the mere sic jubet of the Commissioner. Mr. Justice CAMPBELL delivered the opinion of the court. This is a writ of error to the Supreme Court of Louisiana, under the 25th section of the judiciary act of September, 1789. The plaintiff commenced a petitory action in the District Court of Caddo parish, Louisiana, for a parcel of land in the possession of the defendants. He claims the land by a purchase from the United States, and exhibits their patent for it, bearing date in June, 1850, with his petition. The defendant (Hearne) appeared to the action, and answered that the United States had sold the land to James Bell, and as the property of James Bell it had been legally sold by the sheriff of Caddo, under a valid judgment and execution against him, and that a person under whom he (Hearne) derives his title was the purchaser at the sheriff's sale. A number of parties were cited in warranty, and answered to the same effect. A judgment was given for the defendants in the District and Supreme Courts; and upon the judgment in the last, the plaintiff prosecutes this writ of error. The title of the plaintiff consists of the duplicate receipts of the receiver of the land office at Natchitoches, Louisiana, (No. 1,270,) dated in July, 1839, by which he acknowledges the receipt, from the plaintiff, of full payment for the lands described in the receipt and petition; a patent certificate, of the same date and number, from the register of that office, certifying the purchase of the plaintiff, and his right to a patent; and a patent, issued in due form, for the said lands, in pursuance of the act of Congress and the patent certificate. The case of the defendants originates in these facts: The register of the land office at Natchitoches, in making up his duplicate certificate of purchase, to be returned to the General Land Office, inserted the name of James Bell for that of John Bell. That certificate was sent to the General Land Office, with the monthly returns of the register, and in July, 1844, a patent was issued in the name of James Bell, and sent to the register at Natchitoches, who retained it in his office till 1849. In 1849, John Bell sent to the office of the register his duplicate receipts, and the patent in the name of James Bell was delivered to him. Upon a representation of the facts to the Commissioner of the General Land Office, this patent was cancelled, and a new one issued to the plaintiff. It appears, from the proof in the case, that the plaintiff had a brother, named James Bell, who was his agent for making the entry, and that the land was sold in March, 1844, as his property, by the sheriff of Caddo, as is stated in the answers of the defendants. The act of Congress of the 24th April, 1820, providing for the sales of the public lands of the United States, enacts, 'That the purchaser at private sale shall produce to the register of the land office a receipt of the Treasurer of the United States, or from the receiver of public moneys of the district, for the amount of the purchase money on any tract, before he shall enter the same at the land office.' At various times, since the passage of the act, the modes of conducting sales at the different land offices of the United States have been prescribed by the Commissioner, and the evidence to be afforded to the purchaser designated. The circular issued in 1831 contains the instructions under which the local officers were acting at the date of this entry. The instructions pertinent to this case are, that 'when an individual applies to purchase a tract of land, he is required to file an application in writing therefor; on such application the register endorses his certificate, showing that the land is vacant and subject to entry, which certificate the applicant carries to the receiver, and is evidence on which the receiver permits payment to be made, and issues his receipt therefor; the duplicate of this is handed to the purchaser, as evidence of payment; and which should be surrendered when a patent, forwarded from the General Land Office, is delivered to him. The other receipt is handed to the register, who must immediately indicate the sale on his township plat, and enter the same on his tract book, and is transmitted to the General Land Office with the monthly abstract of sales and certificates of purchase.' The certificates of purchase are made according to forms furnished by the General Land Office. One is issued to the purchaser, and another is retained, to be sent to the Commissioner. They should be deplicates; and the instructions to the register in regard to them are, 'that the designation of the tract, in the certificates of purchases, is always to be in writing, not in figures. The certificates are to be filled up in a plain, legible hand, and great care is to be taken in spelling the names of the purchasers. The monthly return must always be accompanied by the receiver's receipts and register's certificates of purchase.' From this statement of the act of Congress and the regulations of the Land Office, it will be seen that the embarrassment in which this title is involved proceeds from an error committed by the register at Natchitoches in making up the duplicates of his certificate of purchase—the duplicate intended for the General Land Office—and from which the monthly abstract was prepared. The plaintiff was nowise responsible for this. He had paid his money into the receiver's office, and obtained the receipt prescribed by the act of Congress of 1820, before cited. He had obtained his certificate of purchase, evincing his title to a patent certificate. At this stage of the proceeding, the register of the land office, in completing his office papers, and in making up his returns for Washington city, committed a mistake, which was not detected by the officers at Natchitoches in comparing their returns, (as they are ordered to do,) and eluded the vigilance of the officers at Washington. It was discovered at Natchitoches, when an agent of the plaintiff applied for the patent, and surrendered his duplicate receipt and certificate. It was then discovered that the christian name of the plaintiff had been inaccurately set out in the returns at Washington and the patent. The Supreme Court of Louisiana say: 'It appears, from the evidence, that the plaintiff and his brother James Bell purchased the land in dispute from the United States on the same day—3d July, 1839—and that the patent certificates were issued in their respective names by the register of the land office at Natchitoches, Louisiana, bearing the same number.' We interpret the papers from the land office differently from the Supreme Court. There is no evidence, in our opinion, of more than one sale—that evinced by the receiver's receipt—and, in that receipt, John Bell, the plaintiff, is named as the purchaser. We think there was but one certificate of purchase issued to a purchaser—that in favor of John Bell. The certificate of purchase which contains the name of James Bell is found in the General Land Office. If that was intended for a James Bell, there should have been another for John Bell. But there is only a single certificate there, and the conclusion is irresistible, that the name James was entered by mistake for John. We find no evidence in the record to show that James Bell held any evidence of a purchase. Whatever appearance of a title he had, is owing to the mistake in the duplicate certificate returned to the General Land Office, and the patent issued in his name. But this patent was never delivered to him. The question then arises, had the Commissioner of the General Land Office authority to receive from John Bell the patent erroneously issued in the name of James Bell, and to issue one in the proper name of the purchaser? And the question, in our opinion, is exceedingly clear. The Commissioner of the General Land Office exercises a general superintendence over the subordinate officers of his department, and is clothed with liberal powers of control, to be exercised for the purposes of justice, and to prevent the consequences of inadvertence, irregularity, mistake, and fraud, in the important and extensive operations of that officer for the disposal of the public domain. The power exercised in this case is a power to correct a clerical mistake, the existence of which is shown plainly by the record, and is a necessary power in the administration of every department. Our conclusion is, that the Supreme Court of Louisiana erred in denying the validity of this title, and in conceding any effect or operation to the certificate of purchase or patent issued in the name of James Bell, as vesting a title in a person bearing that name. It is objected that this court has no jurisdiction over this judgment of the Supreme Court of Louisiana. The plaintiff claimed the land described in his petition, under a purchase made from the United States, and produced muniments of title issued by their authority, and this title is pronounced to be inoperative by the District and Supreme Courts of Louisiana. Does this appear by the record before us? The record in the Supreme Court of Louisiana purports to be a true and faithful transcript of the documents filed, orders made, proceedings had, and evidence adduced, on the trial in the District Court. The Supreme Court possesses the right, and is under the obligation of examining questions of fact as well as of law, and to state the reasons of their judgment. The statement of the evidence adduced is taken as an equivalent for a statement of the facts by the district judge in the practice of that court. It clearly appears that the ground upon which the judgment in the Supreme Court was given was the invalidity of the title of the plaintiff, because an older patent had been issued in favor of James Bell. We think this court has jurisdiction. (Armstrong v. Treasurer, &c., 16 Pet., 261; Grand Gulf R. R. and B. Co. v. Marshall, 12 How., 165; Almonester v. Kenton, 9 H., 1.) Judgment reversed. Cause remanded.
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60.US.378
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Where a case is brought up to this court by a writ of'error Issued to the Supreme Court of a State, under the twenty-fifth section of the judiciary act, if it appears
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This case is before us on a motion to dismiss for want of jurisdiction. It is a bill in chancery originating in the Circuit Court of Wayne county, in the State of Michigan, and afterwards taken by appeal to the Supreme Court of the State. In order to give this court jurisdiction under the 25th section of the judiciary act, the record of the case must show, by direct averment or necessary intendment, that one of the questions enumerated in that section did arise, and was decided by the State court, as required. If the subject of complaint be, that a State statute is repugnant to the Constitution of the United States, and therefore void, and that the State court has declared it to be valid, this fact should appear by some direct averment, either on the bill or answer, or in the decree of the court. After scrutinizing with great care the rather prolix pleadings of this case, we are unable to find any complaint, by the bill or answer, that the Legislature of Michigan have passed any act affecting the rights of either party which 'impairs the obligation of a contract;' nor is there an intimation in the decree that any such question arose in the case; nor is there any necessary intendment that such a question did arise, and was necessarily decided, from anything that does appear in the pleadings, evidence, or decree; on the contrary, it shows affirmatively that no such question did or could arise. This will clearly appear from an examination of the bill and answer. The bill alleges, that the complainants were incorporated by an act entitled 'An act to authorize the sale of the Central railroad and to incorporate the Michigan Central Railroad Company,' approved March 28, 1846; that they purchased the Central railroad, according to the terms of their charter, and have since that time completed and run said railroad; that, at the time of the act, the State of Michigan owned both the Central and Southern railroads; that the management of the Central road was found onerous and unprofitable; that it was an object to sell the same; that the road was not worth, to exceed $800,000; and that the franchises and exclusive rights secured by the charter alone made it worth the sum they paid, viz: $2,000,000; and that it was for the interest of the State to grant such franchises and exclusive rights, and that the exclusive privileges secured to them by the following provision in section five of their charter were especially valuable to them, and without which they would not have purchased said road: 'And no railroad or railroads from the eastern or southern boundary of the State shall be built or constructed or maintained, or shall be authorized to be built, constructed, or maintained, by or under any law of this State, any portion of which shall approach, westwardly of Wayne county, within five miles of the line of said railroad, as designated in this act, without the consent of this company.' The bill further alleges, that the State at the same time resolved to sell the Southern railroad, but that said sale was only to take effect on the completion of the sale of the said Central railroad; that it was well understood by the complainants, the State, and the defendants, (the Southern Railroad Company,) that the sale of said Southern railroad was subordinate to the sale of the Central railroad, and that the act incorporating the said Michigan Southern Railroad Company, approved May 9, 1846, was subject to the complainants' charter; and that, by the sixth section of that act of incorporation, it is provided as follows: 'And the said Southern Railroad Company shall also, within three years after the passage of this act, extend, construct, and complete the Tecumseh branch from the village of Tecumseh, by way of Clinton, to the village of Jackson, by way of Manchester, and along the line of railroads formerly authorized to be constructed by the Jackson burgh and Palmyra Railroad Company, or so far along the same as may not conflict with the provisions of an act entitled 'An act to authorize the sale of the Central railroad, and to incorporate the Michigan Central Railroad Company,' approved March 28, 1846, and put the same in operation, with sufficient motive power to do the business of the country depending on said branch.' The bill further alleges, that the defendants are threatening to construct, and are taking the preliminary steps for constucting, said Tecumseh branch to the village of Jackson, and that ten miles of said branch railroad, if constructed, will be within five miles of the complainants' railroad; and that said branch, together with the Erie and Kalamazoo railroad from Toledo to Adrian, and the Michigan Southern railroad to Monroe, will, in fact and effect, constitute one railroad, both to the eastern and southern boundary of the State, and therefore will be an invasion of the rights and privileges guarantied to the complainants by that provision of their charter before cited, and beyond the powers granted to said Southern company; and therefore an injunction is prayed for. The answer of the defendants denies that the provision of the complainants' charter above cited applies to such a road as the Tecumseh branch, but only to parallel roads, or those nearly so; it avers that the Legislature could not grant powers so large and exclusive as those set up by the complainants; and that the Tecumseh branch, if built, would not, in fact or effect, together with the other railroads named, constitute one line of railroads, either to the eastern or southern boundary of the State, and the construction of the same would be no violation of the rights and privileges guarantied to the complainants by their charter, and that by their own charter they are not only authorized, but required, to construct said branch to Jackson. The gravamen of the bill is, that the defendants are acting without legislative authority, and are usurping rights not granted to them by their charter. It nowhere asserts that they are acting under authority conferred on them by a legislative act which infringes the rights previously granted in the complainants' charter, or impairs the obligation of their contract. The answer puts in issue nothing but the construction of certain statutes which both parties admit to be valid. It is therefore abundantly apparent that this court has no jurisdiction to review the judgment of the Supreme Court of Michigan in this case. A manuscript opinion of one of the judges of the Supreme Court of Michigan has been referred to by the counsel, in their argument in support of our jurisdiction. But even if this opinion had introduced some speculations on points not involved in the pleadings of the case, this court cannot resort to anything therein contained in order to support their jurisdiction. In the case of the Ocean Insurance Company v. Polleys, we have decided, 'that it is to the record, and to the record alone, that this court can resort to ascertain its appellate jurisdiction under the twenty-fifth section of the judiciary act.' The writ of error must therefore be dismissed for want of jurisdiction.
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60.US.382
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In estimating the duty payable at the custom-house upon imported iron, it was proper to levy it on the prices at which the iron was charged in the invoices; and the entry in the invoices, that the importer would be entitled to a deduction for prompt payment, could not affect the amount of duty chargeable.
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This is a writ of error to the Circuit Court of the United States for the district of Maryland. The suit was brought in the court below by the plaintiffs against the defendant, collector of the port of Baltimore, to recover back an excess of duties paid under protest on an importation of iron. The iron was shipped from Liverpool, and, on an appraisal at the custom-house in Baltimore, the invoice price was adopted as the minimum market value upon which to assess the duties. The plaintiffs claimed that the iron ought to be appraised at the actual cash market value, or cash wholesale price, instead of the actual market value or wholesale price at a credit of four months, the usual time in the purchase of iron. But the collector insisted upon the invoice price as the minimum valuation. Two invoices are given in the record as specimens of those produced at the trial. One of them contains the price of the iron, with a deduction of two and a half per cent. for prompt payment, which means cash; the other adds at the foot, four months credit, which is the customary credit in the trade. The court charged the jury, that it being admitted that the duties were levied on the prices at which the iron was charged in the invoices, they were lawfully exacted, and the plaintiffs not entitled to recover; and that the entry in the invoice, that the plaintiffs would be entitled to a deduction for prompt payment, could not affect the amount of duty chargeable. The eighth section of the act of 1846 (9 U. S. St., p. 43) provides, 'that under no circumstances shall the duty be assessed upon an amount less than the invoice value, any law of Congress to the contrary notwithstanding.' It is claimed that this section has been repealed by the act of Congress of March 3, 1851, (9 St. U. S., p. 629,) which provides that the collector shall 'cause the actual market value, or wholesale price thereof at the period of the exportation to the United States, in the principal markets of the country from which the same shall have been imported, &c., to be appraised, &c., and to such value or price shall be added all costs and charges, &c., as the true value at the port where the same may be entered,' &c. Previous to this act, the time when the value of the article in the foreign market was to be ascertained, was the time of the purchase, (Act 30th August, 1842, sec. 16, 5 St. U. S., p. 563;) now, by the act of 1851, the time of exportation. There is no change, however, in the rule which must govern in making the valuation—it is the actual market value or wholesale price in the principal markets of the country from which the article shall have been imported. The only real change, therefore, in respect to this matter, under the law of 1851, from that of 1842 and 1946, would seem to be a change of the time when the valuation is to take place, without intending to interfere with any other of the regulations in the former laws. This was the interpretation given by the Department of the Government having charge of this subject, soon after the passage of the act in question, and, we think, may be sustained upon the principles that this court has uniformly applied in interpreting these revenue laws. The construction is also borne out by the case of Stairs et al. v. Peaslee, (18 How., 522.) That case recognises the eighth section of the act of 1846 as in force since the act of 1851, and the clause in question is a part of it. In respect to the deduction from the price on account of prompt payment, we think the fact does not vary or affect the price of the article, as stated in the invoice. It relates simply to the mode of payment, which may, if observed, operate as a satisfaction of the price to be paid by the acceptance of a less sum. We think the ruling of the court below right, and that the judgment should be affirmed.
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60.US.263
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In Massachusetts, a former verdict and judgment in an action on the case for a nuisance is not conclusive evidence of the plaintiff's right to recover in a subsequent action for the continuance of the same nuisance. The plea of the general issue in actions of trespass or case does not necessarily put the title in issue. But the former verdict, though not conclusive, is permitted to go to the jury as prima facie or persuasive evidence. Where there is some evidence tending to establish a fact in Tssue, the jury must judge of its sufficiency. It is the duty of the court to construe written documents, but the application of their provisions to external objects is the peculiar province of the jury.
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THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island, to which it had been removed from the district of Massachusetts. It was an action of trespass on the case brought by Richardson against the city of Boston, for the continuance of a nuisance which is described in the case of the city of Boston v. Lecraw, (17 Howard, 426.) He was the owner of two wharves between which the drain in question was erected, whereby the access to his wharves by boats or vessels was very materially interrupted. The case was tried at June term, 1855, and resulted in a judgment for the defendants. The bill of exceptions taken by the counsel of Richardson will be mentioned hereafter. As one of the important questions in the case was, whether or not the record of a former case between the same parties could be given in evidence, it is proper to see what that record was. At June term, 1853, a case was tried between the same parties, having also been removed from the district of Massachusetts to Rhode Island. The opinion of the district judge (who tried the case) was, that the right of property could not be taken from Richardson without compensation, and that, under the circumstances of the case, he was entitled to recover against the city of Boston whatever damages he might prove under the sixth count of his declaration. That sixth count stated the occupancy of Price's wharf by Bullard as tenant, the reversionary interest being in Richardson, and the occupancy of the Bull wharf by Lecraw & Perkins, the reversionary interest being in Richardson, and averred that the dock in front of these wharves was, and had been for a long time, a public way, slip, or dock, so as to allow a free communication between the wharves and the channel of the sea. Under this instruction of the court, the jury found a verdict for the plaintiff, and assessed his damages at $1,209.69. It was this record of the case, tried in 1853, which the counsel of the plaintiff offered in evidence in the present suit, but the judge ruled that the judgment was not admissible in evidence for any purpose, and refused to admit the same to be put in evidence; to which refusal and ruling the plaintiff excepted. The plaintiff then offered in evidence an agreed statement of facts contained in the record of the former suit, which the judge refused to admit, and to this ruling also the plaintiff excepted. The plaintiff then gave in evidence all the documents enumerated in said agreed statement of facts, together with much parol testimony relative to the premises, which it is impossible to specify particularly. The plaintiff then rested, whereupon the defendants offered the following: ORDER OF MAYOR AND ALDERMEN, JUNE 18, 1849. CITY OF BOSTON. An Ordinance constituting the Board of Health for the City. Be it ordained by the Mayor, Aldermen, and Common Council, of the City of Boston, in City Council assembled, as follows: The Mayor and Aldermen shall constitute the Board of Health of the City, and shall exercise all the powers and perform all the duties now vested in the City Council as a Board of Health, with the right of carrying into execution such powers and duties through the agency of any persons whom they may select, or in any manner which they may prescribe. In Common Council, June 14, 1849. Passed. Sent up for concurrence. BENJAMIN SEAVER, President. In Board of Mayor and Aldermen, June 18, 1849. Passed. JOHN P. BIGELOW, Mayor. A true copy. Attest: S. F. McCLEARY, City Clerk. And without offering any further evidence on their part, did request the court to rule and instruct the jury that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff, and the violation of those rights by the defendants, such as to sustain the plaintiff's action. The plaintiff on his part did request the court to rule and instruct the jury as follows: 1. That there is evidence in the case competent to go to the jury, and to be judged and weighed by them, that, at the time of the grants by the town to Gridley & Baxter of their estates or possessions, there existed a town or public way between those possessions, for access to and from the sea in boats and vessels, upon which those possessions were bounded, and that the right to use and enjoy said way passed to said grantees by the grant of those possessions, and is an appurtenance thereto, and to their heirs and assigns. 2. That if said way, so bounded on said possessions, existed at the time of the grant of those possessions, and the title to the land thereunder to high water was in the town, but not the title to the flats between said way at high-water mark, and the sea or low-water mark; and if said title rested in the town subsequently by the ordinance of 1641, then, by and after the said ordinance, said way became shaped and restricted over the flats to the interval between the flats annexed by said ordinance to the possessions of said Gridley & Baxter, and was and continued to be an appurtenance to the possessions so granted to Gridley & Baxter, their heirs and assigns. 3. That there is evidence competent to go to the jury, and be judged and weighed by them, that at the time of the grants of liberty to wharf to Gridley, Gill, & Bull, there existed a public or town way between the possessions of Gridley & Baxter, and bounding thereon for access of boats and vessels to the sea or low water, and that such liberties to wharf were bounded by said way, and thereby the right to use said way for access of boats and vessels to and from such wharves, one or both of them, became, by virtue of said respective grants, annexed or appurtenant to said grants, and to said possessions of Gridley & Baxter, their heirs or assigns. 4. That if the jury shall find that at the time of the staking out of said highway, October 31st, 1683, the same extended below high-water mark, and that the possessions of said Baxter bounded on said way, then by virtue of the liberty to wharf, granted at the same time to the proprietors of lands on Sea street, the right to use said way for access by boats and vessels to and from such wharf, became by virtue thereof annexed or appurtenant to the possession of said Baxter, his heirs and assigns. 5. That there is evidence competent and proper to be submitted to the jury, to be judged and weighed by them, that a town way or highway was laid out by the selectmen, October 31st, 1683, to the sea or low-water mark; that the estates or wharves claimed by the plaintiff were bounded thereon; that said way was a way for boats and vessels, and that, at the time of the acts complained of, plaintiff was the owner and possessed of said wharves, as stated in the declaration; and if the jury shall so find, and that defendants while said way remained, and without a previous due and legal discontinuance thereof, erected the structure alleged in the declaration, and continued the same for the time and in the manner set forth therein, and that by reason thereof the plaintiff has been deprived of the use of said way for access to and from his wharves, with boats and vessels, then the plaintiff is entitled to recover. 6. That if the jury shall find that by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low-water mark, held by him under a grant of the Legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover. Thereupon his honor the judge did decline and refuse to make and give either of the said rulings and directions so prayed by the plaintiff, but did rule and instruct the jury as prayed by the defendants as aforesaid. Whereupon the plaintiff excepted, and the jury found a verdict for the defendants. The case came up to this court upon these several exceptions, and was argued by Mr. Bartlett for the plaintiff in error, and by Mr. Chandler and Mr. Loring for the defendants. The reporter regrets that the limited space which must be allotted to the report of this case will not allow him to state the arguments of the respective counsel upon the various points which arose in the case. Mr. Justice GRIER delivered the opinion of the court. This is an action of trespass on the case brought by the plaintiff in error against the city of Boston, for the erection and maintenance of a drain at the foot of Summer street, which, it is alleged, is a nuisance, and injurious to the property of plaintiff. He is owner of two wharves, called the Price and the Bull wharf, which are extended from high to low-water mark, from the lots which adjoin Summer street on each side. The nuisance, which is the subject of complaint in this case, is the same as that in the case of Boston v. Lecraw, decided in this court, and reported in 17 Howard, 426. The declaration contains seven counts, in four of which the plaintiff, as owner of the several wharves, and having the seizin and possession, claims a right of way, as appurtenant to the same, over the 'dock' or 'way and dock,' which constitutes the interval between the wharves; also, that his wharves are bounded on the 'town dock,' 'town way or deck,' which he alleges to have been long used as a 'public dock, slip, or way.' The fifth and sixth counts are for injuries to the reversion, with like averments. A seventh count avers the wharves to be bounded, respectively, 'by a highway, town way, or public way, to the sea, extending from the corner of Summer and Sea streets to the channel, or low-water mark, which was duly laid out and established pursuant to law.' The defendant pleaded the general issue, and on the trial the plaintiff offered in evidence the record of a former verdict and judgment rendered in his favor in an action against defendant for the erection of the same nuisance, the continuance of which is the subject of the present suit. The rejection of this evidence by the court is the subject of the first bill of exceptions. It is contended that this record was not only evidence, but conclusive of the right of the plaintiff, and prima facie evidence of the continuance of such right; and that plaintiff, having no opportunity to plead it as an estoppel, may exhibit it as matter of evidence. It may be admitted that numerous decisions may be found in many of the State courts affirming this proposition; nevertheless, it has not been universally adopted. The leading case of Outram v. Morewood (2 East., 174) establishes the following proposition, in which all concur: 'That if a verdict be found on any fact or title distinctly put in issue in any action of trespass, such verdict may be pleaded, by way of estoppel, in another action between the same parties or their privies, in respect to the same fact or title.' But estoppels, which preclude the party from showing the truth, are not favored. To give the verdict the effect of an estoppel, the facts must be distinctly put in issue. The plea of the general issue, in action of trespass, or case, does not necessarily put the title in issue; and, although the judgment is conclusive as a bar to future litigation for the thing thereby decided, it is not necessarily an estoppel in another action for a different trespass. The judgment can only give the plaintiff an ascertained right to his damages, and the means of obtaining them. These principles seem to have been adopted by the courts of Massachusetts, and applied to cases like the present. In the decision of this point, we must be guided by the decisions of the courts of that State. In the case of Standish v. Parker, (2 Pick., 20,) which was an action for a nuisance, the court say: 'We think it very clearly settled that nothing is conclusively determined by the verdict but the damages for the interruption covered by the declaration. In actions for torts, nothing is conclusively settled but the point or points put directly in issue. By the plea of the general issue, the title is not concluded, because it cannot be made to appear upon the general issue that the title ever came in question.' (See also 15 Pick., 564.) Nevertheless, though a verdict in such case is not conclusive, it is permitted to go to the jury as prima facie, or persuasive, evidence. (3 Pick., 288.) If the evidence of the facts involved in the first trial are still doubtful, if witnesses were then examined whose testimony cannot now be obtained, for these and many other reasons the former verdict may have the effect of highly-persuasive evidence on another trial of the same question. But if on the last trial new evidence has been discovered, or if the question of title submitted on the first trial was connected with instructions in law which have since been found to be erroneous; or if a different verdict on the same evidence would have resulted from the different instructions given on the last, it is plain that the first verdict could have but little or no persuasive effect. Title is often a question of mixed law and fact and a party is not concluded by an erroneous opinion of the court, pronounced in a former case. We are of opinion, therefore, that the court erred in not permitting the record of the former suit to be given in evidence to the jury. 2. At the conclusion of the trial, the court, at the request of defendant's counsel, instructed the jury 'that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff.' As it is the duty of the jury to decide the facts, the sufficiency of evidence to prove those facts must necessarily be within their province. The jury cannot assume the truth of any material averment without some evidence; and it is error in the court to instruct the jury that they may find a material fact of which there is no evidence. An instruction like this is imperative on a jury; it has taken the place, in practice, of a demurrer to evidence, and must be governed by the same rules. If there be 'no evidence whatever,' as in the case of Parks v. Ross, (11 How., 393,) to prove the averments of the declaration, it is the duty of the court to give such peremptory instruction. But if there be some evidence tending to support the averment, its value must be submitted to the jury with proper instructions from the court. If this were not so, the court might usurp the decision of facts altogether, and make the verdict but an echo of their opinions. The court below seem to have considered the decision of this court, in the case of Boston v. Lecraw, as requiring them to give the instruction demanded by the defendant. The action in that case was for the same alleged nuisance by a tenant of the present plaintiff. But the plaintiff in that case claimed no other right of way over the lands of defendant, save the public right of navigation; and this court decided that the public right of navigation, between high and low-water mark, was defeasible at any time by the owner of the subjacent land. That, as the space between the plaintiff's wharves had been converted into a dock by the accident of its position, so long as it remained unreclaimed, every person had a right to pass and repass over it. The exercise of this public right, for any length of time whatever, would therefore form no grounds of presumption either of a public dedication or a private grant to the owners of the adjoining wharves. While it remains unreclaimed, it is a public highway or dock, by a paramount but defeasible title. The adjoining wharves may receive much more advantage than others from the use of it, but they cannot convert it to a private use, under color of a public right. The public officers of a town have no right to lay out a town way between high water and the channel of a navigable river, or appropriate the shore or flats to the use of the inhabitants of a town in the form of a way or road. (1 Pick., 179; 5 Pick., 494.) But in the present case the city of Boston is owner of the land, and has the same right to reclaim their flats which other owners have. Before they are so reclaimed, the public and the adjoiners may exercise their paramount right of navigation. But if the city elects to reclaim its portion of the shore, and extend Summer street to low water, it has a right so to do. And if the street should be less beneficial to the adjoiners in this form, than when they could use it as a dock under the public right of navigation, they cannot complain. The absence of these advantages may be a loss to them but if incurred by the defendants' exercise of their own rights, it is no wrong to them. But if the city has determined to reclaim this land, and has laid out a street thereon, or continued Summer street to low-water mark, the right to use it as a street or highway on land becomes appurtenant to the property of the adjoiners. It may be the duty of the city to make drains along or under the streets, but they cannot construct them so as to hinder the public use of them as streets, or erect thereon a nuisance to the adjoiners. If Summer street be extended to low water, the plaintiff has a right to pass along and across the same, and anything which obstructs such passage is a nuisance, and injurious to his rights. The seventh count of plaintiff's declaration claims a right of way as appurtenant to his land or wharves, on the ground that Summer street extends to low water. In support of this allegation, the following entry in the town records was given in evidence: 'October 31, 1683. The selectmen all met this day, staked out a highway for the town's use, on the southerly side of the land belonging to the late John Gill, deceased, being thirty foot in breadth from the lower corner of said Gill's wharf next the sea.' It is the duty of the court to construe written instruments; but the application of their provisions to external objects described therein is the peculiar province of the jury. Whether this document describes Summer street as it was afterwards laid out from high-water mark; whether 'the lower corner of Gill's wharf next the sea' was at that time (in 1683) at low-water mark; whether this street was staked out to low water, were questions which should have been submitted to the jury. The fact that the learned counsel differ so widely as to the situation of the points called for as the boundary of the street next the sea, shows conclusively that it is a question for the jury, and not for the court. Moreover, the court were requested by plaintiff's counsel to instruct the jury, 'that if the jury shall find that, by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low-water mark, held by him under a grant of the Legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover.' There was some evidence that the drain constructed by defendant was not carried out sufficiently to discharge its contents so as to be swept off by the tides; but that it caused an accumulation of matter at the outer end of the plaintiff's wharves, insomuch that vessels could not approach them with the same depth of water as formerly. If this be so, it was an injury to the plaintiff, for which he was entitled to recover damages. This question should have been submitted to the jury, and this instruction given, as requested by plaintiff's counsel. The others are disposed of by the opinion of this court in Boston v. Lecraw. For these reasons, the judgment is reversed, and venire de novo awarded.
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60.US.66
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Where exceptions are -not taken in the progress of the trial in the Circuit Court r and do not appear on the record, there is no ground for the action of this court.
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This is a writ of error to the Circuit Court for the eastern district of Louisiana. The action was brought on a judgment rendered by the Supreme Court of Louisiana; certain matters were set up in the Circuit Court, as a defence, all of which were overruled, and judgment was entered for eighteen hundred and ten dollars, with interest and costs. The only errors assigned in this court, on which a reversal of the judgment of the Circuit Court is prayed, are: 1, that at the time suit was brought on the judgment, in the Circuit Court, an execution had been issued on the same judgment in the State court, which was in full force, and on which a seizure had been made; and 2, that the Circuit Court erred in holding that the indebtment was not founded on a Louisiana contract. These exceptions were not taken in the progress of the trial in the Circuit Court, and do not appear on the record. The fact that an execution was issued and returned appears in the record of the State court, but it was not made a part of the record of the Circuit Court, by bill of exceptions, and it cannot now be noticed. There is no ground of error on the face of the record, for the action of this court. The judgment of the Circuit Court is affirmed with ten per cent. damages.
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60.US.359
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In order to create a maritime lien for supplies furnished to a vessel, there must be a necessity for the supplies themselves, and also that they could be obtained only by a credit upon the vessel. Hence, where a running account for coal was kept with a vessel trading upon the lakes, the master of which was also the owner, it does not appear that the coal could be procured only by creating a lien upon the vessel. In a contest, therefore, between a libellant for supplies and mortgagees of the vessel, the latter are entitled to the proceeds of sale of the boat. This is under the general admiralty law. No opinion is expressed as to the effect of the local laws of the States.
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This is an appeal from the Circuit Court of the United States for the northern district of New York, in admiralty. The libel was filed by Reed, the respondent, against the steamboat Sultana, to recover for supplies furnished said boat. The claimants in the court below set up, by way of defence, a mortgage executed to them, by the master and owner, upon the Sultana, dated the 31st October, 1853, to secure the sum of five thousand three hundred and fifty-four dollars and ninety-eight cents. The mortgage was duly recorded in the office of the customs at Buffalo, the place of the enrollment of the vessel, and was also filed in the office of the clerk of the county of Erie. The demand claimed in the libel was a running account for the supply of coal at Erie, in the State of Pennsylvania, extending from June, 1852, to May, 1854. The claimants admitted, in their answer, the supply set up in the libel, and also that it was represented to be necessary at the times delivered, to enable the vessel to pursue her business upon Erie and other Western lakes. The answer denies that the supplies were furnished upon the credit of the boat; but, on the contrary, avers they were furnished on the credit of the master. The agreed facts in the case admit that there was no representation of the necessity of the supplies, other than that they were directed by the master at the times when furnished, and that the libellant knew, at these several times, that Appleby, the master, was the sole owner of the Sultana; that he usually navigated the boat, as master, and was present when the supplies were furnished. When not present, they were furnished at the request of the person in command. Although it does not distinctly appear in the case, yet it is fairly to be inferred, that this vessel was engaged in making regular trips upon the Western lakes, in the business of carrying passengers and freight, and procured her supplies of coal at places of convenient distance, according to her necessities, by a previous understanding with the parties furnishing the article. The bill rendered by the libellant contains a running account of debit and credit, through a period of nearly two years. There is no great doubt in the case, but that the article was necessary for the navigation of the vessel at the times when furnished, though the proof is very loose and indefinite. It seems to have been taken for granted, that a supply of coal was essential to the propelling of a steamboat, and, in a general sense, this is doubtless true; but then, to make out a necessity within the admiralty rule, the supply must be really or apparently necessary at the time when it is furnished. But the more serious difficulty in the case, on the part of the libellant, is the entire absence of any proof, to show that there was also a necessity, at the time of procuring the supplies, for a credit upon the vessel. This proof is as essential as that of the necessity of the article itself. The vessel is not subject to a lien for a common debt of the master or owner. It is only under very special circumstances, and in an unforeseen and unexpected emergency, that an implied maritime hypothecation can be created. It seems, also, to be supposed that circumstances of less pressing necessity, for supplies or repairs, and an implied hypothecation of the vessel to procure them, will satisfy the rule, than in a case of a necessity, sufficient to justify a loan of money on bottomry, for the like purpose. We think this a misapprehension. The only difference is, that before a bottomry bond can be given, an additional fact must appear, namely, that the master could not procure the money, without giving the extraordinary interest incident to that species of security. This distinction was attempted in the case of The Alexander, (1 Wm. Rob., 336,) but was rejected by Dr. Lushington. A principle, also excluding any such distinction, has been laid down at this term, in the case of William Thomas and others v. J. W. Osborn. Now, the supplies having been furnished at a fixed place, according to the account current, and apparently under some general understanding and arrangement, the presumption is, that there could be no necessity for the implied hypothecation of the vessel—there could be no unexpected or unforeseen exigency to require it. For aught that appears, the supplies could have been procured on the personal credit of the master, and in this case especially, as he was also the owner. We do not say that the mere fact of the master being owner, of itself, excludes the possibility of a case of necessity that would justify an implied hypothecation; but it is undoubtedly a circumstance that should be attended to, in ascertaining whether any such necessity existed in the particular case. (1 Wm. Rob., 369, The Sophie.) These maritime liens, in the coasting business, and in the business upon the lakes and rivers, are greatly increasing; and, as they are tacit and secret, are not to be encouraged, but should be strictly limited to the necessities of commerce which created them. Any relaxation of the law, in this respect, will tend to perplex and embarrass business, rather than furnish facilities to carry it forward. After the fullest consideration, we think the decree below was erroneous, and should be reversed, and that the mortgagees are entitled to the proceeds in the registry. This is the case of a foreign ship, the vessel belonging at Buffalo as her home port, and the debt contracted at Erie, in the State of Pennsylvania. We do not intend to express any opinion as to the necessity required to create liens upon vessels, under the local law of the States. Decree reversed, and proceeds ordered to be paid to the mortgagees.
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60.US.72
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According to the practice preseribed for the Circuit Courts, by this court, in equity causes, a bill cannot be dismissed. on motion of the respondents, for want of equity after answer and before the hearing.
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This is an appeal from the decree of the District Court of the United States for the northern district of Alabama, having the powers of a circuit court. The appellant filed his bill in that court to charge a legacy on property alleged to have come to the hands of the respondents, and to be chargeable with its payment. After answers had been filed, and while exceptions to one of the answers were pending, the respondents moved to dismiss the bill for want of equity, and the court ordered it to be dismissed. This was irregular, and the decree must be reversed. It is understood to be in conformity with the practice of the State courts of Alabama to entertain such a motion at any stage of the proceedings. But the equity practice of the courts of the United States is governed by the rules prescribed by this court, under the authority conferred upon it by the act of Congress, (McDonald v. Smalley, 1 Pet., 620,) and is the same in all the States. And this practice does not sanction the dismissal of the bill on a motion made while the parties are perfecting the pleadings. The question whether the bill contains any equity, may be raised by a demurrer. If the defendant answer, this question cannot be raised until the hearing. Non constat that a defect may not be removed before the hearing. The case must be remanded to the Circuit Court, and if any defects exist in the bill capable of being cured by amendments, as no replication has been filed, it is within the rules of ordinary practice to allow them to be made.
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60.US.246
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The laws of Alabama provide, thatwherethere is a judgment against a debtorwho Is unable to pay, a process of garnishment (which is called in some of the States an attachment upon final process) piay be issued and laid in the hands of a garnishee, who mayowe money to the judgment debtor,.or have any effects -within the control of the garnishee. The garnishee, having real property under his control by virtue of a dqed of trust, cannot retain it for the purpose of reimbursing himself for advances made to the judgment debtor after the eecution of the deed in execution of a parol contract between them. - Where the garnishee skA up .claim to the funds In his laands, he must prove the bona fides of his claim, if it is derived fiom the judgment debtor after the oTigIn of the creditor's demand. - . I
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The defendants recovered a judgment in the District Court, in a plea of debt against one Mahone. The latter having no property in possession liable to an execution, the defendants, in consequence, served a garnishment on the plaintiff, (Williams,) to attach any debt he might owe their debtor, or secure any effects of theirs he might have. The garnishee answered to the process, that on the day the writ of garnishment issued, he had sold some personal property of the debtor, under the authority of two deeds of trust, for the satisfaction of the debts described in them; and there remaining a balance due, he sold a house and lot, described in one of the deeds, for a sum sufficient to extinguish those debts and to leave a surplus. He further answered that Mahone, prior to the judgment, was indebted to him upon another account, and had so continued a debtor till the sale; that before the judgment, and afterwards, before the sale, Mahone had instructed him to apply any surplus that might arise from the sale to the payment of that account; and he had done so, in accordance with the instructions. There was an issue formed upon the answer of the garnishee, and the subject of the controversy was the claim of the respective parties to the surplus above described. The garnishee produced on the trial a number of promissory notes, dated prior to the judgment, and proved the signature of Mahone to them; he also proved that Mahone had admitted the authority of the garnishee to apply the surplus to the payment of his demands, not described in the deeds, shortly after the sale, and at that time disclaimed any power to control it. No evidence was given of the existence of the notes of a day prior to the answer, nor of their consideration. The defendants proved a conversation between their attorney and the garnishee, on the day of the sale, relative to the amount of the debt from Mahone to him, and that the notes were not mentioned by him in that conversation. The court instructed the jury that the inquiry for them was, whether there was fraud or collusion between the garnishee and the debtor. That if they found that the notes were made in fraud or collusion, they would render a verdict in favor of the attaching creditors, for the amount of the surplus in the hands of the garnishee. This charge includes the substance of all the questions presented to the court or jury. We think the case was submitted as favorably for the garnishee as the facts warranted, and that he has no reason to complain in consequence of the instructions given or refused. The plaintiff is not entitled to hold the surplus in his hands arising from the sale of the trust property, for the payment of the notes, under any stipulation in the deeds. Those provide for a return of the surplus to the grantor, after the payment of the debts described. Nor can the real property conveyed in the deed be retained as a security for advances, or debts subsequently made on the strength of a parol engagement. Such a contract would be avoided by the statute of frauds. Nor is the deed of trust such a conveyance or title-paper as to afford a security, as a deposit, for subsequent engagements. In Ex parte Hooper, (1 Meri. Ch. R., 7,) Lord Eldon said: 'The doctrine of equitable mortgage by deposit of title deed has been too long established to be now disputed; but it may be said that it ought never to have been established. I am still more dissatisfied with the principle upon which I have acted, of extending the original doctrine so as to make the deposit a security for subsequent advances. At all events, the doctrine is not to be enlarged. In the present case, the legal estate has been assigned, by way of mortgage. The mortgagee is not entitled to say this conveyance is a deposit, because the contract under which he holds it is a contract for conveyance only, and not for deposit.' The only other title that the garnishee has interposed against the claim of the attaching creditor is, that the debtor made a valid appropriation of the surplus arising from the sale, to the satisfaction of a bona fide demand of the garnishee against him, prior to the service of the garnishment. The principle adopted by the courts of Alabama for such cases is, that the adverse claimant for property or effects seized at the suit of a creditor by attachment or execution, must prove the bona fides of his claim, if it is derived from the debtor after the origin of the creditor's demand; and the declarations or acknowledgments of the debtor will not be received to support the title. The recitals in a deed or mortgage executed by him, or admissions made at the time of its execution, will not be received. (Goodgame v. Cole, 12 Ala., 77; Nolen & Thompson v. Gwinn, 16 Ala., 725.) Nor is the consideration of a note in favor of the claimant shown by the production of the note itself. (De Vendell v. Malone, 25 Ala., 272.) The objection to such evidence is said to be, that it can be manufactured by one indebted, and by that means a creditor might be defeated; for, in most cases, it would not be practicable for him to prove a negative, or disprove the statement made by his debtor. In the present case, the consideration of the notes was not proved; nor was their existence before the service of the garnishment shown otherwise than by their date—that is, by an assertion of the debtor. Nor was the order to appropriate the surplus to their payment proved, except by an acknowledgment to a stranger, after the writ of garnishment had been issued. The bona fides of the title of the garnishee to the surplus in his hands was not supported by competent proof, and therefore the lien of the garnishment was properly maintained. The plaintiff contends that the proceeding by garnishment is a statutory proceeding, by which a creditor is enabled to reach a demand in favor of his debtor against a third person; and that the remedy can only be resorted to when the debtor himself could maintain debt or indebitatus assumpsit; and that the only issue which can be made upon an answer of the garnishee is, indebitatus vel non. The Supreme Court of Alabama have decided, in the cases cited, that merely equitable demands or rights of action, not involving a debt or assumpsit, are not the subject of the garnishee process. But the same court has determined that money or effects in the hands of the garnishee, which are fraudulently withdrawn from the creditors of a defendant, may be reached, in an attachment or judgment, by that process. Hazard v. Franklin, 2 Ala., 349; Lovely v. Caldwell, 4 Ala., 684, and the civil code of Alabama, sec. 2,523, provides explicitly for the attachment of a demand similar to that existing in this case. Judgment affirmed.
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61.US.583
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Where a vessel had been seized under a process of foreign attachment issuing from a State court in Pennsylvania, and a motion was pending in that court for an order of sale, a libel filed in the District Court of the United States, for mariners wages, and process issued under it, could not divest the authorities of the State of their authority over the vessel; and of the two sales made, one by the sheriff and one by the marshal, the sale by the sheriff must be considered as conveying the legal title to the property, and the sale by the marshal as inoperative. Where property is levied upon, it is not liable to be taken by an officer acting under another jurisdiction. The cases examined where conflicting claims against the same property are set up under the laws of the United States and under State laws. The process of foreign attachment in Pennsylvania is identical with that which issues out of the District Court of the United States sitting in admiralty. The admiralty jurisdiction of the courts of the United States, although exclusive on some subjects, is concurrent upon others. The courts of common law deal with ships or vessels as with other personal property. In order to give jurisdiction in rem, the seizure by the marshal must have been valid; and this was not the case when the vessel was, at the time of seizure, in the actual and legal possession of the sheriff.
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THIS case was brought up from the Supreme Court of Pennsylvania, by a writ of error issued under the twenty-fifth section of the judiciary act. The facts of the case are particularly stated in the opinion of the court. It was argued by Mr. Cadwallader and Mr. Hood for the plaintiffs in error, and by Mr. Evarts for the defendant. The Reporter would be much pleased if he could place before his readers an extended report of the arguments of counsel in a case of such importance and general interest to the profession as the present. But he is admonished by the size to which the present volume has grown, that it has already reached the customary limits of such a work; and all that he can do is to present a brief sketch of the views of the respective counsel. After examining the respective jurisdictions of the State and admiralty courts, and the nature of the process and proceedings, the counsel for the plaintiffs in error deduced the following propositions: 1. That over all maritime liens for seamen's wages, the District Court of the United States has exclusive cognizance whenever invoked by the seamen, and the State courts have no jurisdiction over such liens. 2. Although a State court has no jurisdiction whatever over a maritime lien, yet that court will afford to a seaman, if he choose to resort to it, a remedy by personal action, against the owner or master of the vessel, on the contract for wages, or perhaps by permitting him to intervene in a personal action, already pending; but the cognizance of the State court does not attach, unless specially invoked by the seaman. 3. That the existence of one or more remedies for a seaman to recover his wages in a State court, does not oust the cognizance of the admiralty court over his lien against the vessel; the seaman may pursue either of these remedies only, or both together. 4. That the pendency of proceedings in foreign attachment in a State court against the vessel, at the suit of a general creditor of the owner, and the seizure and sale of the vessel by the sheriff under such proceedings, do not oust the admiralty jurisdiction of the District Court of the United States over liens for the wages of the seamen, if invoked by them, nor prevent the admiralty court from enforcing such liens against the vessel in specie, by proceedings in rem. 5. That the sale of a vessel, under a writ or order of a common-law court, does not, under the general maritime law of the United States, divest the lien of a seaman for his wages, so as to prevent its enforcement against the vessel in specie, by the District Court of the United States, under proceedings in rem in the admiralty. 6. That a sale of a vessel under a writ or order of the District Court of the United States, proceeding in rem against a vessel in the admiralty, not appealed from nor reversed, passes to the purchaser a title to the vessel discharged of all liens and encumbrances whatever. 7. That where a vessel subject to maritime liens for seamen's wages is seized by the sheriff under a writ from a State court, and subsequently a proceeding in rem is commenced in the admiralty to enforce these liens, it would be an usurpation of admiralty jurisdiction by the State court, if, after being informed of the existence of said liens and proceedings, the State court ordered a sale of the vessel, as perishable and chargeable, on the ground, inter alia, of the accruing daily expenses of the said mariners' wages. The proceeding under which the sale was ordered by the State court was based not upon the simple allegation of perishableness, but upon an allegation of perishableness by reason of chargeableness; in other words, the sale was prayed and ordered because the subject was a chargeable one. That which was alleged to render her thus chargeable was mainly an accumulating liability for the very seamen's wages in question. Without this liability, non constat, that any sale would have been ordered. In correcter language, it is legally to be assumed, that without it there would have been no sufficient chargeableness. For these wages, the lien had already attached to the vessel by the proceeding in admiralty. Thus, in order to render the vessel saleable as chargeable, the subject of the lien, which could constitutionally be enforced directly in the admiralty alone, was by a usurpation of jurisdiction imported into the proceeding in the State court, as the foundation of the very proceeding in question. This appears from the order of sale of the State court made not under one alone, but under both of the foreign attachments, and from the petition referred to in the order of sale of Robert Bell, one of the plaintiffs in attachment, alleging the vessel in question to be 'of a chargeable and perishable nature, from the daily expense of wharfage, custody fees, mariners' wages, and liable to deterioration in her hull, apparel, and furniture, from exposure to ice, wind, sun, and weather.' 8. The legal custody of the vessel claimed for the admiralty in this case will not necessarily lead to conflict between the United States and State courts and their respective officers; but, on the contrary, will tend to prevent such conflicts, by maintaining each in the legitimate exercise of its jurisdiction and powers. According to the English admiralty law, as recognised by Sir John Jarvis, Chief Justice of the Common Pleas, when a vessel subject to maritime liens for seamen's wages is seized by the sheriff, under a writ of foreign attachment from a State court, and subsequently a proceeding in rem is commenced in the admiralty, to enforce the seamen's liens, the latter proceeding relates back to the time when the liens were created, and in contemplation of law the legal custody of the vessel is deemed to have been in the admiralty from the period when the lien first attached, (Harmer v. Bell, 22 Eng. L. and Eq. R., 72,) so far at least as may be necessary to protect these liens. This legal custody of the admiralty is not incompatible with, and does not necessarily interfere with, the possession of the sheriff, nor the proceedings in the State court. In such a case, the sheriff may hold the vessel until bail be entered for the owner, or until the owner's interest has been sold to satisfy plaintiff's claim. But the proceedings in rem in the admiralty, being known to the purchaser at the sheriff's sale, he will take the vessel cum onere and, on paying off the maritime liens, will acquire a perfect title. On the other hand, if the admiralty sell the vessel whilst the proceedings in the State court are pending, and the sheriff still in possession, the title of the purchaser is good against all the world; but the surplus that may remain out of the proceeds of the admiralty sale, after payment of the liens against the vessel, would, on application to that court, be ordered to be paid to the sheriff, or into the State court. In the case of the Royal Saxon, the purchasers at the sheriff's sale might have obviated the necessity of a sale by the admiralty by satisfying the maritime liens. They could have discharged the vessel from them by paying the holders, or, by leave of the admiralty court, they could have paid into its registry enough to satisfy them, being entitled to receive back any surplus. In this was they could have acquired a perfect title; but they pursued neither course, nor did they bring the matter in any form before the District Court of the United States. The maritime liens therefore continued attached to the vessel after the sheriff's sale, and until sold by the marshal, when Mr. Taylor became the purchaser. If the doctrines laid down in this case by the Supreme Court of Pennsylvania, and on which the judgment of that court can alone be sustained, are to be adopted as the maritime and admiralty law of the United States, the privileged lien, heretofore supposed to belong to mariners, is in effect taken away. It will be in the power of a master or owner of a vessel, in every case, to prevent seamen from availing themselves of their lien. This may be effected by procuring a constable to seize the vessel, and hold her in custody until she is about to sail, and then release her. It only requires a fi. fa. or attachment to issue on a judgment confessed before a justice of the peace for a small amount, to a real or pretended creditor; because, according to the doctrine of the Supreme Court of Pennsylvania, there is no peculiar potency in admiralty process in rem, against ships—'in substance, the proceeding by a justice of the peace against a stray cow is exactly equivalent.' (Record, 72; Taylor v. Carryl, 12 Harris, 261.) By the seizure of the ship, therefore, whether by sheriff or constable, the whole custody of her is in the State tribunal, (Record, 61, 77,) and any action or decree afterwards by the admiralty, in order to enforce the mariners' lien against the ship, would be in relation to a subject over which it had no control, and would consequently be void.' (Record, 61; Taylor v. Carryl, 12 Harris Rep., 269.) Judge Wells, in his opinion delivered in the case of the Golden Gate, (Newberry's Adm. Rep., 296, 308; 5 Am. Law Reg., 155, 158,) points out other inconveniences from allowing to the process of justices of the peace, &c., the force of proceedings in rem. 'If,' says he, 'there is an average of fifty counties to each State, and twenty justices of the peace to each county, we should then have in the United States thirty-one thousand courts of admiralty and maritime jurisdiction, to say nothing of the courts of record,' &c. (5 Am. Law Reg., 158, 159.) The Supreme Court of Pennsylvania have decided that, by the law of that State, a seaman may come into her courts and enforce his maritime lien for wages against the proceeds of a vessel sold by the sheriff. Although this be a doctrine unknown to the old common law, yet there would be no reason to complain of it, if that court had not gone farther, and decided that the seaman's only remedy in such a case was in the State court, and that he had no longer a right to enforce his lien in the admiralty. The State court undertook to define the limits of the jurisdiction of the admiralty courts; and if it has erred in this, it is the right and duty of the Supreme Court of the United States to correct the error, and whilst asserting the legitimate jurisdiction of the admiralty, to administer the maritime law as it has been recognised and established by the Constitution and laws of the United States. It is an important function of this court to defend the lawful jurisdiction of the admiralty, and the just efficacy of its process against judicial as well as legislative encroachment, among other reasons, because on these mainly depend the rights of seamen and others having maritime liens. In this case, the Supreme Court of the United States is not called on to alter in any respect the municipal law of Pennsylvania, but simply to declare that the additional remedy allowed to seamen by that law does not oust the admiralty of its exclusive jurisdiction, if the seamen prefer a recourse to it, rather than to the remedies provided by the State law. A reversal, therefore, of the judgment of the Supreme Court of Pennsylvania will involve no victory of Federal over State authority and power. It will concede to the admiralty and maritime jurisdiction of the Federal courts nothing but what the stanchest friend of State rights and the most jealous adversary of Federal encroachment may safely concede, because imperatively required for the safety and protection of a class of men whose rights are specially protected by the commercial codes of every civilized nation, and by none more carefully than by that of the United States; rights, in the maintenance of which the Commonwealth of Pennsylvania and her people are as much interested as the people of any of the other States, for the sake of those of her citizens (and they are very numerous) who have devoted themselves to the sea. The third point of the counsel for the defendant was the following; Third Point. The judgment below on the merits of the controversy determined by it is free from error. I. The plaintiff below, by his purchase at the sheriff's sale, acquired a good title to the barque 'Royal Saxon.' 1. By the process of foreign attachment, and the possession of the sheriff under that process, the barque was in the custody of the law, to abide the result of the suit in which process issued. (Act Penn., June 13, 1856, secs. 48, 50; same, March 20, 1845, sec. 2; Morgan v. Whatmaugh, 5 What., 125; Serg. For. Att., 1, 23.) 2. Its sale, pending the suit, as perishable property, was regular, and by authority of a competent court having jurisdiction. 3. The judicial sale of property as perishable is, in the nature of the procedure, and from the same policy and necessity which occasion the sale, a conversion or transmutation of the thing itself, overriding every question of title and lien. (1.) The right and power of such sale are not supported upon any notion or determination of title, but wholly upon the condition of the thing sold. (2.) The motive and effect of the sale are for the benefit of the real title and of every valid lien, to save from perishing to the owner and the lienor the subject of his property or lien. (3.) To say the court has this right to sell the thing in its custody, and exercises this right, and yet the buyer at such sale does not take the thing sold, but only the right, title, or interest, of some particular person or persons, is insensible, and subversive of the whole doctrine of sales by necessity. (Foster v. Cockburn, Sir Thomas Parker's Exch. R., 70; Jennings v. Carson, 4 Cranch, 26, 27; Grant v. McLaughlin, 4 Johns. R., 34; The Tilton, 5 Mas., 481, 482.) (4.) The remedy of any party whose property has been, without right as against him, brought into this peril of litigation which has necessitated, and so justified, its valid sale, is by action against the suitor or the officer who has wrongfully subjected it to this conversion, or by claiming upon the proceeds of the sale, at his election. II. The defendant below, by his purchase at the marshal's sale, acquired no title to the barque. 1. When the attachment and monition issued in the admiralty suit, the barque was in the custody of the sheriff of the county of Philadelphia, and so continued until after the order for its sale as perishable. The marshal, therefore, never had custody, nor the District Court possession, of the barque, to support any jurisdiction to sell as perishable. (The Robert Fulton, 1 Paine C. C. R., 625, 626; Hagan v. Lucas, 10 Peters, 403; Jennings v. Carson, 4 Cranch, 26, 27.) 2. The effect of a sale in admiralty, pending a suit, of property as perishable, is not at all strengthened or qualified by the nature of the claim or lien prosecuted in the suit. Whether the cause of action be of one degree of privilege or priority or another, the efficacy of the writ to the marshal is the same, the custody of the court is the same, and the grounds and effect of the special sale of the property in custody are the same. So, too, whether the cause of action fail to be supported in the final decree is immaterial; the jurisdiction to sell, and the title conveyed, depending on the court's possession of the suit, and of the perishable property, and not at all on the event of the suit. (Harmer v. Bell, the case of the Bold Buccleugh in Privy Council, 22 Eng. L. and E.) 3. The title of the defendant below, then, derives no special validity from the peculiar privilege among admiralty liens accorded to wages. The whole question is, between the two sales by the two courts, as to which passed the title; if the cause of action in the Supreme Court of Pennsylvania had been for seamen's wages, and the cause of action in the District Court had been on a charter party, or bill of lading, the question of the effect of the two sales would rest on the same considerations as under the actual facts in the case. III. The sale by the sheriff gave to the purchaser a title discharged of all liens, which thereafter attached only to the fund produced by the sale. This effect follows every judicial sale of the res itself, (made by a court having jurisdiction,) and the claim of seamen's wages has no exemption from this consequence. 1. The nature of the lien of seamen's wages subjects it to this consequence. It is neither a jus in re nor a jus ad rem; it gives no right of possession, and is not displaced by change of possession—it is a right of action to be enforced by judicial procedure, and with (among others) the special remedy of being satisfied, by means of such procedure, out of the ship. (The Nancy, 1 Paine C. C. R., 184; The Brig Nestor, 1 Sumn., 80; Ex parte Foster, 2 Story, 144; Harmer v. Bell, 22 Eng. L. and E. R., 72.) Whatever prevents the judicial process (from whose vigor alone the seamen's right of action is converted into a right of possession or dominion over the ship) from reaching the ship, postpones or defeats, as the case may be, the enforcement of his right of action against the ship. If the ship be locally without the jurisdiction of the process, this postpones or defeats the remedy. If the ship, though locally within the jurisdiction of the process, be withdrawn from its operation by a previous subjection to the process of another jurisdiction, this postpones or defeats the remedy. (The Robert Fulton, ut supra; Hagan v. Lucas, same.) A conversion of the ship into proceeds by a lawful exercise of dominion over it, by paramount authority, or through judicial sentence, defeats the remedy against the ship, which, as it were, no longer exists, in specie, to meet the remedy. The familiar rule, that seamen's claims attach for their satisfaction to the proceeds of such sales, proves that the ship is discharged from their claims; otherwise the seamen would take the purchase-money, produced by other interests than theirs, to discharge claims still resting on the ship, and not included in the purchase-money. (Presb. Corp. v. Wallace, 3 Rawle, 150; Sheppard v. Taylor, 5 Pet., 675; Brown v. Full, 2 Sumn., 441; Trump v. Ship Thomas, Bee's R., 86; The St. Jago de Cuba, 9 Wheat., 414, 419.) Mr. Justice CAMPBELL delivered the opinion of the court. This cause comes before this court by writ of error to the Supreme Court of Pennsylvania, under the twenty-fifth section of the judiciary act of the 24th September, 1789. The defendants (Ward 3 Co.) instituted an action of replevin in the Supreme Court of Pennsylvania, for the barque Royal Saxon. Upon the trial of the cause at nisi prius, it appeared that the barque arrived at the port of Philadelphia in October, 1847, on a trading voyage, and was the property of Robert McIntyre, of Londonderry, in Ireland. In November, 1847, she was seized by the sheriff of Philadelphia county, under a writ of foreign attachment that was issued against her owner and another, at the suit of McGee & Co., of New Orleans, from the Supreme Court; and at the same time her captain was summoned as a garnishee. On the 15th January, 1848, those creditors commenced proceedings in the Supreme Court to obtain an order of sale, because the barque was of a chargeable and perishable nature, suffering deterioration from exposure to the weather, and incurring expenses of wharfage, custody fees, &c., &c. This application was opposed by the captain of the barque, but was allowed by the court on the 29th of January, 1848. The vessel was duly sold by the sheriff under this order, the 9th February, 1848, to the plaintiffs in the replevin, Ward & Co. On the 21st January, 1848, while the writs of attachment were operative, and a motion for the sale of the barque was pending in the Supreme Court, the seamen on board the barque filed their libel in the District Court of the United States for the eastern district of Pennsylvania, sitting in admiralty, for the balances of wages due to them, respectively, up to that date, and prayed for the process of attachment against the barque, according to the practice of the court. This was issued, and, on the same day, the marshal returned on the writ, 'Attached the barque Royal Saxon, and found a sheriff's officer on board, claiming to have her in custody.' The captain appeared to this libel, and filed an answer admitting the demands of the seamen. On the 25th January he exhibited a petition to the District Court, in which he represented the pendency of the suits in attachment and in admiralty; that the barque was liable to him for advances; that she was subject to heavy charges, and could not be employed to carry freight; and therefore he, with the approbation of the British consul, which accompanied the petition, solicited an order of sale for the benefit of all persons interested. This order was granted by the District Court, after due inquiry, on the 9th February, 1848, and was executed the 15th of February, 1848, by the marshal of the court, at which time the defendant in the replevin was the purchaser, who took the possession of the vessel, and held her until retaken in this replevin suit of Ward & Co. Upon the trial of the replevin cause at nisi prius, the defendant solicited instructions to the jury, which were refused by the court, and the court instructed the jury unfavorably to his title. From the instructions asked, and the charge delivered, a selection is made, to exhibit the questions decided. The court was requested to charge—— 3. 'That when the lien of a mariner for wages is sought to be enforced in the admiralty by libel, and the marshal has attached the vessel under such proceedings, the vessel so attached is in the exclusive custody of the admiralty until the claims of the libellants have been adjudicated, or the vessel relieved by order of the court, on stipulation or otherwise; and such exclusive custody exists, notwithstanding a previous foreign attachment from a court of law served on the vessel by the sheriff.' 5. 'That a foreign attachment is not properly a proceeding in rem; but an attachment from the admiralty on a libel for mariners' wages is in rem; and the legal possession acquired by the sheriff, on service of the writ of foreign attachment, is ended, superseded, or suspended, by the service of such attachment from the admiralty.' 8. 'That when, on the 21st of January, 1848, the Royal Saxon was attached under the process issued on the libel for mariners' wages, she came by virtue of that attachment into the exclusive custody of the court of admiralty; and such exclusive legal custody continued from the 21st January, 1848, until the sale by the marshal, by order of that court, on the 15th February, 1848.' 10. 'That the legal possession of the vessel being exclusively in the admiralty court from the 21st January, 1848, till the sale made, by order of that court, on the 15th February, 1848, the sale by the sheriff on the 9th February, 1848, gave no title to the purchaser as against the sale by the marshal.' The court refused so to instruct the jury, but charged them: 'That the court of admiralty could not proceed against the vessel while she remained in the custody of an independent and competent jurisdiction; that the presence of the marshal on the ship did not prove his custody, for the sheriff's officer was there before him; that the marshal did not dispossess the sheriff, but prudently retired himself, and informed the court in his return that the vessel was in the custody of the sheriff; that if the sheriff first took possession of the vessel, and maintained it until she was sold to the plaintiffs, they had the better title; and that the fact of the continuing possession of the sheriff was for the jury.' A verdict was returned in favor of the plaintiffs, upon which a judgment was rendered in the Supreme Court in their favor, confirming the opinion of the judge as expressed to the jury at nisi prius. The judgment of the District Court allowing the order of sale proceeded upon the grounds: 'That the suits in attachment in the Supreme Court applied to alleged interests in the vessel, not to the vessel itself. The attachment creditor, if he succeeds in his suit, obtains recourse against the thing attached just so far as his defendant had interest in it, and no farther. The rights of third parties remain in both cases unaffected. The bottomry creditor, residing, it may be, in a foreign country, is no party to either proceeding, and loses none of his rights. His contract was with the thing, not the owner, and it is therefore not embarrassed, and cannot be, by any question or contest of ownership. So, too, seamen, whoever owns the vessel, or how often soever the ownership may be changed, wherever she may go, whatever may befall her—so long as a plank remains of her hull, the seamen are her first creditors, and she is privileged to them for their wages,' &c., &c. Again: 'What interest in the ship,' asks the District Court, 'does the sheriff propose to sell? Not a title to it, but the defendant's property in it, whatever it may be. Not so in the admiralty. Here the subject-matter of the controversy is the res itself. It passes into the custody of the court. All the world are parties, and the decree concludes all outstanding interests, because all are represented. Here they are marshalled in their order of title and privilege. There is no difficulty in allowing an arrest by the admiralty, notwithstanding the vessel or some interest in it has passed into the custody of the sheriff. He retains all his rights, notwithstanding the marshal's intervention. The proceedings against the vessel, the thing, the subject of the property or title, may still go on in the admiralty. The sheriff's vendee of the ship may intervene there, as the defendant might have done in this court; he may make defence to the proceeding there as the successor to the defendant's rights, and may be substituted ultimately before the judge of the admiralty as a claimant of the surplus fund.' This cause has been regarded in this court as one of importance. It has been argued three different times at the bar, and has received the careful consideration of the court. The deliberations of the court have resulted in the conviction that the question presented in the cause is not a new question, and is not determinable upon any novel principle, but that the question has come before this and other courts in other forms, and has received its solution by the application of a comprehensive principle which has recommended itself to the courts as just and equal, and as opposing no hindrance to an efficient administration of the judicial power. In Payne v. Drew, 4 East., 523, Lord Ellenborough said: 'It appears to me, therefore, not to be contradictory to any cases nor any principles of law, and to be mainly conducive to public convenience and to the prevention of fraud and vexatious delay in these matters, to hold that where there are several authorities equally competent to bind the goods of a party, when executed by the proper officer, that they shall be considered as effectually and for all purposes bound by the authority which first actually attaches upon them in point of execution, and under which an execution shall have been first executed.' This rule is the fruit of experience and wisdom, and regulates the relations and maintains harmony among the various superior courts of law and of chancery in Great Britain. Those courts take efficient measures to maintain their control over property within their custody, and support their officers in defending it with firmness and constancy. The court of chancery does not allow the possession of its receiver, sequestrator, committee, or custodee, to be distrubed by a party, whether claiming by title paramount or under the right which they were appointed to protect, (Evelyn v. Lewis, 3 Hare, 472; 5 Madd., 406,) as their possession is the possession of the court. (Noe v. Gibson, 7 Paige, 713.) Nor will the court allow an interfering claimant to question the validity of the orders under which possession was obtained, on the ground that they were improvidently made. (Russell v. East Anglien R. Co., 3 McN. and Gord., 104.) The courts of law uphold the right of their officers to maintain actions to recover property withdrawn from them, and for disturbance to them in the exercise of the duties of their office. But it is in this court that the principle stated in Payne v. Drew has received its clearest illustration, and been employed most frequently, and with most benignant results. It forms a recognised portion of the duty of this court to give preference to such principles and methods of procedure as shall serve to conciliate the distinct and independent tribunals of the States and of the Union, so that they may co-operate as harmonious members of a judicial system coextensive with the United States, and submitting to the paramount authority of the same Constitution, laws, and Federal obligations. The decisions of this court that disclose such an aim, and that embody the principles and modes of administration to accomplish it, have gone from the court with authority, and have returned to it, bringing the vigor and strength that is always imparted to magistrates, of whatever class, by the approbation and confidence of those submitted to their government. The decision in the case of Hagan v. Lucas, 10 Pet., 400, is of this class. It was a case in which a sheriff had seized property under valid process from a State court, and had delivered it on bail to abide a trial of the right to the property, and its liability to the execution. The same property was then seized by the marshal, under process against the same defendant. This court, in their opinion, say: 'Where a sheriff has made a levy, and afterwards receives executions against the same defendant, he may appropriate any surplus that shall remain, after satisfying the first levy by the order of the court. But the same rule does not govern when the executions, as in the present case, issue from different jurisdictions. The marshal may apply moneys collected under different executions, the same as the sheriff. But this cannot be done as between the marshal and the sheriff; a most injurious conflict of jurisdiction would be likely often to arise between the Federal and the State courts, if the final process of the one could be levied on property which had been taken on process of the other. The marshal or the sheriff, as the case may be, by a levy acquires a special property in the goods, and may maintain an action for them. But if the same goods may be taken in execution by the marshal and the sheriff, does this special property vest in the one or the other, or both of them? NO SUCH CASE CAN EXIST; property once levied on remains in the custody of the law, and is not liable to be taken by another execution in the hands of a different officer, and especially by an officer acting under another all officer acting under another jurisdiction.' The principle contained in this extract from the opinion of the court was applied by this court to determine the conflicting pretensions of creditors by judgment in a court of the United States, and an administrator who has declared the insolvency of his estate, and was administering it under the orders of a probate court, (8 How. S. C. R., 107,) in a controversy between receivers and trustees holding under a court of chancery, and judgment creditors seeking their remedy by means of executory process, (14 How. S. C. R., 52, 368,) and to settle the priorities of execution creditors of distinct courts. (Pulliam v. Osborn, 17 How., 471.) In a case not dissimilar in principle from the present, the principle was applied in favor of the Executive department, having property in custody whose possession was disturbed by a State officer under judicial process. An attachment from a State court was levied upon merchandise imported, but not entered at the custom-house, and the validity of the levy was the question involved. (Harmer v. Dennie, 3 Pet., 292.) The court say: 'From their arrival in port, the goods are, in legal contemplation, in the custody of the United States. An attachment of such goods presupposes a right to take the possession and custody, and to make such possession and custody exclusive. If the officer attaches upon mesne process, he has the right to hold the possession to answer the exigency of the writ. The act of Congress recognises no such authority, and admits of no such exercise of right.' To the argument, that the United States might hold for the purpose of collecting duties, and the sheriff might attach the residuary right, subject to the prior claim, the court say: 'The United States have nowhere recognised or provided for a concurrent possession or custody by any such officer.' A recognition of the same principle is to be found in Peck v. Jenness, 7 How. S. C. R., 612. An act of Congress had conferred on the courts of the United States exclusive jurisdiction 'of all suits and proceedings of bankruptcy,' and had provided that the act should not be held to impair or destroy existing rights, liens, mortgages, &c., &c., on the estate of the bankrupt. A District Court of the United States decided that its jurisdiction extended to administer the entire estate of the bankrupt court, and that the liens on the property, whether judicial or consensual, must be asserted exclusively in that court, and that all other jurisdictions had been superseded. This court denied the pretension of the District Court, and affirmed, 'That when a court has jurisdiction, it has a right to decide every question which occurs in the cause; and when the jurisdiction of the court and the right of the plaintiff to prosecute his suit has once attached, that right cannot be arrested or taken away by proceedings in another suit. These rules have their foundation not merely in comity, but in necessity; for if one may enjoin, the other may retort, by injunction, and thus the parties be without remedy, being liable to a process for contempt in one, if they dare to proceed in the other. Neither can one take property from the custody of the other by replevin, or any other process, for this would produce a conflict extremely embarrassing to the administration of justice.' The legislation of Congress, in organizing the judicial powers of the United States, exhibits much circumspection in avoiding occasions for placing the tribunals of the States and of the Union in any collision. A limited number of cases exist, in which a party sued in a State court may obtain the transfer of the cause to a court of the United States, by an application to the State court in which it was commenced; and this court, in a few well-defined cases, by the twenty-fifth section of the judiciary act of 1789, may revise the judgment of the tribunal of last resort of a State. In all other respects the tribunals of the State and the Union are independent of one another. The courts of the United States cannot issue 'an injunction to stay proceedings in any court of a State,' and the judiciary act provides that 'writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.' 'Thus, as the law now stands,' say this court, 'an individual who may be indicted in a Circuit Court for treason against the United States is beyond the power of the Federal courts and judges, if he be in custody under the authority of a State.' (Ex parte Dorr, 3 How. S. C. R., 103.) And signal instances are reported in verification of the above statement. (Ex parte Robinson, 6 McLean R., 355.) This inquiry will not be considered as irrelevant to the question under the consideration of the court. The process of foreign attachment has been for a long time in use in Pennsylvania, and its operation is well defined, by statute as well as judicial precedents. The duties of the sheriff, under that process, are identical with those of a marshal, holding an attachment from the District Court sitting in admiralty. 'The goods and chattels of the defendant, in the attachment, (such is the language of the statute,) in the hands of the garnishee, shall, after such service, be bound by such writ, and be in the officer's power; and if susceptible of seizure or manual occupation, the officers shall proceed to secure the same, to answer and abide the judgment of the court in that case, unless the person having the same shall give security. (Purdin's Dig., 50, sec. 50; 5 Whar., 125; Carryl v. Taylor, 12.) It follows, by an inevitable induction from the cases of Harmar v. Dennie, 3 Pet., 299; Hagan v. Lucas, 10 Pet., 400; and Peck v. Jenness, 7 How., 612, that the custody acquired through the 'seizure or manual occupation' of the Royal Saxon, under the attachment by the sheriff of Philadelphia county, could not legally be obstructed by the marshal, nor could he properly assert a concurrent right with him in the property, unless the court of admiralty holds some peculiar relation to the State courts or to the property attached, which authorized the action or right of its marshal. The relation of the District Courts, as courts of admiralty, is defined with exactness and precision by Justice Story in his Commentaries on the Constitution. He says: 'Mr. Chancellor Kent and Mr. Rawle seem to think that the admiralty jurisdiction given by the Constitution is, in all cases, necessarily exclusive. But it is believed that this opinion is founded on mistake. It is exclusive in all matters of prize, for the reason that, at the common law, this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But in cases where the jurisdiction of common law and admiralty are concurrent, (as in cases of possessory suits, mariners' wages, and marine torts,) there is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive; and there is no better ground, upon general reasoning, to contend for it. The reasonable interpretation,' continues the commentator, 'would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction exactly according to the nature and extent and modifications in which it existed in the jurisprudence of the common law. When the jurisdiction was exclusive, it remained so; when it was concurrent, it remained so. Hence the States could have no right to create courts of admiralty as such, or to confer on their own courts the cognizance of such cases as were exclusively cognizable in admiralty courts. But the States might well retain and exercise the jurisdiction in cases of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction than cases of common-law jurisdiction.' (3 Story's Com., sec. 1666, note.) In conformity with this opinion, the habit of courts of common law has been to deal with ships as personal property, subject in the main, like other personal property, to municipal authority, and liable to their remedial process of attachment and execution, and the titles to them, or contracts and torts relating to them, are cognizable in those courts. It has not been made a question here that the Royal Saxon could not be attached, or that the title could not be decided in replevin. But the District Court seems to have considered that a ship was a juridical person, having a status in the courts of admiralty, and that the admiralty was entitled to precedence whenever any question arose which authorized a judicial tribunal to call this legal entity before it. The District Court, in describing the source of its authority, says of the contract of bottomry, that 'it is made with the thing, and not the owner,' and that the contract of the mariners is similar; that the RES 'represents' in that court all persons having a right and privilege, while the rights of the owner are treated there as something incorporeal, separable from the res, and which might be seized by the sheriff, even though the res might be in the ad miralty. This representation is not true in matter of fact, nor in point of law. Contracts with mariners for service, and other contracts of that kind, are made on behalf of owners who incur a personal responsibility; and if lenders on bottomry depend upon the vessel for payment, it is because the liability of the owner is waived in the contract itself. 'In all causes of action,' says the judge of the admiralty of Great Britain, 'which may arise during the ownership of the persons whose ship is proceeded against, I apprehend that no suit could ever be maintained against a ship, where the owners were not themselves personally liable, or where the liability had not been given up.' (The Druid, 1 Wm. Rob, 399.) And the opinion of this court in The Schooner Freeman v. Buckingham, 18 How., 183, was to the same effect. In courts of common law, the forms of action limit a suit to the persons whose legal right has been affected, and those who have impaired or injured it. In chancery, the number of the parties is enlarged, and all are included who are interested in the object of the suit; and as the parties are generally known, they are made parties by name and by special notice. In admiralty, all parties who have an interest in the subject of the suit—the res—may appear, and each may propound independently his interest. The seizure of the RES, and the publication of the monition or invitation to appear, is regarded as equivalent to the particular service of process in the courts of law and equity. But the RES is in no other sense than this the representative of the whole world. But it follows, that to give jurisdiction in rem, there must have been a valid seizure and an actual control of the ship by the marshal of the court; and the authorities are to this effect. (Jennings v. Curson, 4 Cr., 2; 2 Ware's Adm. R., 362.) In the present instance, the service was typical. There was no exclusive custody or control of the barque by the marshal, from the 21st of January, 1848, to the day of the sale; and when the order of sale was made in the District Court, she was in the actual and legal possession of the sheriff. The case of the Oliver Jordan, 2 Curtis's R., 414, was one of a vessel attached by a sheriff in Maine, under process from the Supreme Court. She was subsequently libelled in the District Court of the United States, upon the claim of a material man. The District Court sustained the jurisdiction of the court. But on appeal the exception to the jurisdiction was allowed, and the decree of the District Court reversed. Mr. Justice Curtis observed: 'This vessel being in the custody of the law of the State, the marshal could not lawfully execute the warrant of arrest.' In the case of the ship Robert Fulton, 1 Paine C. C. R., 620, the late Mr. Justice Thompson held that the warrant from the admiralty could not be lawfully executed under similar circumstances, and that the District Court could not proceed in rem. The same subject has been considered by State courts, and their authority is to the same effect. (Keating v. Spink, 3 Ohio R., N. S., 105; Carryl v. Taylor, 12 Harris, 264.) Our conclusion is, that the District Court of Pennsylvania had no jurisdiction over the Royal Saxon when its order of sale was made, and that the sale by the marshal was inoperative. The view we have taken of this cause renders it unnecessary for us to consider any question relative to the respective liens of the attaching creditors, and of the seamen for wages, or as to the effect of the sale of the property as chargeable or as perishable upon them. Our opinion is, that there is no error in so much of the record of the Supreme Court of Pennsylvania as is brought before this court by the writ of error, and the judgment of the court is consequently affirmed. Mr. Chief Justice TANEY, Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CLIFFORD, dissented.
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60.US.366
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The United States made two treaties, one in 1838, and one in 1842, with the Seneca Indians, residing in the State of New York, by which the Indians agreed to remove to the West within five years, and relinquish their possessions to certain assignees of the State of Massachusetts, and the United States agreed that they would appropriate a large sum of money to aid in the removal, and to support the Indians for the first year after their removal to their new residence. But neither treaty made any provision as to the mode or manner in which the removal of the Indians or surrender of the reservations was to take place. The grantees of the land, under the Massachusetts assignment, cannot enter upon it and take forcible possession of a farm occupied by ail Indian, but are liable to an action of trespass, guare casumfregit, if they do so. The removal of tribes of Indians is to be made by the authority and under the care of the Government; and a forcible removal, if made at all, must be made under the direction of the United States. The courts cannot go behind a treaty, when ratified, to inquire whether or not the tribe wbs properly represented by its head men.
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This is a writ of error to the Supreme Court of the State of New York. The case was decided by the Court of Appeals of that State; but the record had been remitted, after the decision, to the Supreme Court, from which the appeal had been taken. The suit in the Supreme Court was an action of trespass, quare clausum fregit, brought by the intestate, John Blacksmith, against the defendants, Joseph Fellows and Robert Kendle, for entering, with force and arms, into the close of the plaintiff, commonly known as an Indian sawmill and yard, at the town of Pembroke, county of Genesee, and then and there having expelled and dispossessed the said plaintiff. The defendants plead, 1st, not guilty; and 2d, that the said close, &c., was the soil and freehold of the defendant, Fellows, and that the defendant, Fellows, in his own right, and the defendant, Kendle, as his servant, and by his command, broke and entered the said close, &c., as they lawfully might, for the cause aforesaid. To this plea there was a replication, averring that the close, soil, and freehold, was not the close of the defendant, Fellows. On the trial, it was proved by the plaintiff that the close mentioned in the declaration is situate in the town of Pembroke, county of Genesee, upon a tract of land of twelve thousand eight hundred acres, commonly known as the Tonawanda reservation, and was, at the time of the entry complained of, an Indian improvement upon the same; that said improvement was made about twenty years before the treaty, by the plaintiff and seven other Tonawanda Indians; that the plaintiff is a native Indian, belonging to the Tonawanda band of the Seneca Indians, who reside on that reservation, and are a part of the Seneca Nation, and has so been known for at least thirty-six years; that he has resided on this reservation from his birth, and was in the actual possession of the said improvement at the time of the entry complained of; that on the 13th July, 1846, the defendants entered into and took possession of the said close, and turned the plaintiff out, and in doing so committed the trespass. It was admitted, that a treaty had been made between the United States and the Six Nations of Indians on the 11th November, 1794, by which certain lands in western New York, including this Tonawanda reservation, are declared 'to be the property of the Seneca Nation; and the United States will never claim the same, nor disturb the Seneca Nation, nor any of the Six Nations, or their Indian friends residing thereon, and united with them in the free use and enjoyment thereof; but it shall remain theirs until they choose to sell the same to the people of the United States, who have the right to purchase.' The plaintiff then rested. The defendants gave in evidence certain documents and acts of the Legislatures of the States of New York and Massachusetts, showing that a dispute had arisen, at an early day, between the two States, in respect to the title to a large tract of land within the limits of New York, of which the locus in quo is a part. That in 1786, the dispute was amicably settled by a cession from Massachusetts to New York of the sovereignty and jurisdiction over the tract, and by a cession from New York to Massachusetts of the right of pre-emption to the soil from the Indians. The lands were then in the independent occupancy of the Seneca Nation, and owned by them, and that Massachusetts acquired by the cession the exclusive right of purchasing their title whenever they became disposed to sell; that this right had become duly vested in Thomas L. Ogden and Joseph Fellows, by proper conveyances from Massachusetts, which survived to the latter on the death of Ogden. A treaty was then given in evidence, between the United States and the New York Indians, bearing date 15th January, 1838, and another between the United States and the Seneca Nation, bearing date the 20th May, 1842, under which the defendant claims that he had acquired the Indian title to the close in question, and by virtue of which it is admitted the defence to the action in this case rests. The treaty of 1838 (7 U. S. Stat., 551) set apart a tract of country, situated west of the State of Missouri, as a permanent home for all the New York Indians, containing one million eight hundred and twenty-four acres of land, being, as is expressed in the treaty, 'three hundred and twenty acres for each soul of said Indians, as their numbers are at present computed.' The tract is particularly described and located. It was intended for the future home of nine tribes of Indians, containing, according to the official estimate, a population of five thousand four hundred and eighty-five. The Seneca tribe, including among them their friends, the Onondagas and Cayugas, numbers a population of two thousand six hundred and thirty-three. By the tenth section of this treaty, special provision was made concerning this tribe and their friends already mentioned. They were to have assigned to them the easterly part of the tract set apart to the New York Indians, and to extend so far as to include one half section of land for each soul. The tribe agrees to remove from New York to their new home within five years, and continue to reside there. The section then recites the purchase of the title of the Seneca Nation to certain lands described in a deed of conveyance by Ogden and Fellows, assignees of the State of Massachusetts, for the consideration of $202,000, and also that the Nation has agreed that said money shall be paid to the United States, and that out of this sum $102,000 shall be paid to the owners of the improvements on the land so conveyed, the residue to be invested in stocks by the Government, the income of which is to be paid annually to the Nation at their new homes. The improvements were to be appraised, and a distribution of the $102,000 made among the owners, and 'to be paid by the United States to the individuals who were entitled to the same, &c., on their relinquishing their respective possessions to Ogden and Fellows.' By the fifteenth section of the treaty, the United States agree that they will appropriate the sum of $400,000, to be applied from time to time, under the direction of the President of the United States, in such proportions as may be most for the interest of the Indians who were parties to the treaty, 'to aid them in the removal to their homes, and in supporting them the first year after their removal; to encourage and assist them in education, and in being taught to cultivate their lands; in the erection of mills, houses,' &c. A large tract of land in Wisconsin that had been set apart to certain Indians was relinquished to the Government. The deed of conveyance from the Seneca Nation to Ogden and Fellows, and referred to in the treaty, is annexed thereto. It conveys four reservations in western New York: the Buffalo Creek reservation, containing 49,920 acres; the Cattaraugus, 21,680 acres; the Allegany, 30,469 acres; and the Tonawanda, 12,800 acres. Some difficulty occurred in carrying this treaty into execution, which it is not important to refer to. These difficulties raised by the Indians resulted in a modification of it by a second treaty entered into on 20th May, 1842, which, after refering to the first, and to the deed of conveyance to Ogden and Fellows, and to the differences that had arisen between the parties, provides in the first article that Ogden and Fellows, in consideration of the release and agreements afterwards mentioned, stipulate that the Seneca Nation might continue in the occupation and enjoyment of two of the reservations, the Cattaraugus and the Allegany, the same as before the deed of conveyance. And in the second article, the Seneca Nation, in consideration of the foregoing and other stipulations, agree to release and confirm to Ogden and Fellows the two remaining reservations, the Buffalo Creek and the Tonawanda. The third article provides for reducing the amount of the purchase-money to be paid by Ogden and Fellows, so as to correspond with the relative value of the two reservations released to the value of the four, as fixed in the treaty of 1838. The fourth article provides for the appraisal of the land and improvements in these two reservations, by appraisers—one to be appointed by the Secretary of War, and the other by Ogden and Fellows—and to report their proceedings to the Secretary, and also to Ogden and Fellows. The fifth article provides that the possession of the two tracts confirmed to Ogden and Fellows should be surrendered up as follows: the unimproved lands on the tracts within one month after the reports of the appraisers, and the improvements within two years, provided that the amount to be ascertained and awarded as the proportionate value of said improvements shall, on the surrender thereof, be paid to the President of the United States, to be distributed among the owners according to the determination of the appraisers; and provided, also, the consideration for the release and conveyance of the lands shall, at the time of the surrender thereof, be paid or secured to the satisfaction of the Secretary of War, the income of which to be paid to the Seneca Indians annually. The seventh article provides that the modification in this treaty of 1842 shall be a substitute for that of 1838, wherein it differs from it, and to this extent shall be deemed to repeal it. It will be seen that the principal change under the second treaty consists in the release, by Ogden and Fellows, to the Indians, of two of the four reservations conveyed to them under the treaty of 1838, and the corresponding reduction of the price to be paid. Most of the other provisions of the treaty are untouched, and remained in force. The assignment by the Government of the large tract of country for the New York Indians west of the Missouri—the special tract therein assigned to this Seneca Nation their agreement to remove to their new homes, and the large appropriation to aid in their removal and in their support and encouragement after they had arrived—all these provisions remained unaffected by the second treaty. Neither treaty made any provision as to the mode or manner in which the removal of the Indians or surrender of the reservations was to take place. The grantees have assumed that they were authorized to take forcible possession of the two reservations, or of the four, as the case would have been under the first treaty. The plaintiff in this case was expelled by force; and unless this mode of removal can be sustained, the recovery against the defendants for the trespass was right, and must be affirmed. The removal of tribes and nations of Indians from their ancient possessions to their new homes in the West, under treaties made with them by the United States, have been, according to the usage and practice of the Government, by its authority and under its care and superintendence. And, indeed, it is difficult to see how any other mode of a forcible removal can be consistent with the peace of the country, or with the duty of the Government to these dependent people, who have been influenced by its counsel and authority to change their habitations. The negotiations with them as a quasi nation, possessing some of the attributes of an independent people, and to be dealt with accordingly, would seem to lead to the conclusion, unless otherwise expressly stipulated, that the treaty was to be carried into execution by the authority or power of the Government, which was a party to it; and more especially, when made with a tribe of Indians who are in a state of pupilage, and hold the relation to the Government as a ward to his guardian. It is difficult to believe that it could have been intended by the Government that these people were to be left, after they had parted with their title to their homes, to be expelled by the irregular force and violence of the individuals who had acquired it, or through the intervention of the courts of justice. As we have seen, the Seneca Nation upon the four reservations consisted of a population of some two thousand six hundred and thirty-three souls; and if we include the Tuscaroras, whose lands were also purchased under the same treaty, nearly three thousand. It is obvious that any such litigation would be appalling. If we look into the provisions of the two treaties, we think the conclusion as clear, from a consideration of them, that no such means or manner of removal were contemplated, as that derived from a consideration of their unfitness and impropriety under the circumstances stated. The treaty of 1838 contemplated a removal to the tract west of the State of Missouri, and putting the Indians in possession of it. A large fund was appropriated, and in the hands of the Government, to be disbursed in aid of such removal, and of their support and encouragement after their arrival. It did not, therefore, separate these Indians from the care and protection of the Government on its ratification, but contemplated further duties towards them, and for which means were supplied. Besides, the purchase-money for the reservations was to be paid to the Government; and, by the express terms of the treaty of 1842, the appraised value of the improvements was, on the surrender of the possessions, to be paid to the President of the United States, to be distributed among the owners of the improvements according to the award of the appraisers. This provision shows, that the Government was to be present at the surrender and payment for the improvements. The clause in the treaty of 1838 is still more specific, which was, that the improvements were 'to be paid by the United States to the individuals who were entitled to the same,' &c., 'on their relinquishing their respective possessions to the said Ogden and Fellows.' It is also worthy of remark, that the St. Regis Indians, one of the nine tribes of the New York Indians, in giving their assent to the treaty of 1838, deemed it necessary to guard against a forcible removal to the West, by a clause providing that they 'shall not be compelled to remove under the treaty;' a removal to the West being in contemplation. We think, therefore, that the grantees derived no power, under the treaty, to dispossess by force these Indians, or right of entry, so as to sustain an ejectment in a court of law; that no private remedy of this nature was contemplated by the treaty, and that a forcible removal must be made, if made at all, under the direction of the United States; that this interpretation is in accordance with the usages and practice of the Government in providing for the removal of Indian tribes from their ancient possessions, with the fitness and propriety of the thing itself, and with the fair import of the language of the several articles bearing upon the subject. An objection was taken, on the argument, to the validity of the treaty, on the ground that the Tonawanda band of the Seneca Indians were not represented by the chiefs and head men of the band in the negotiations and execution of it. But the answer to this is, that the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Congress. (1 Cranch, 103; 6 Pet., 735; 10 How., 442; 2 Pet., 307, 309, 314; 3 Story Const. Law, p. 695.) The view we have taken of the case makes it unnecessary to examine the ground upon which the learned court below placed their decision; that court held the appraisal of the improvements, and payment therefor, were conditions precedent to the surrender of them by the Indians; and that the refusal of the Tonawanda band to permit the appraisal did not excuse the performance of these conditions. The ground upon which we have placed our judgment is not in conflict with this view. We hold that the performance was not a duty that belonged to the grantees, but for the Government under the treaty. We think the judgment of the court below right, and should be affirmed.
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61.US.204
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Although an irregularity in the citation may be cured by an appearance in court, yet a defect in the writ of error, (such as not naming a return day for the writ,) or an omission to file a transcript of the record at the term next succeeding the issuing of the writ or the taking of the appeal, are fatal errors, and the case must be dismissed for want of jurisdiction.
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A motion has been made to dismiss this case, for want of jurisdiction. It appears that an action of ejectment was brought by the plaintiffs in error against the defendants, in the Circuit Court of the District of Columbia, and upon the trial the verdict and judgment was for the defendants. The particular day on which the judgment was rendered is not given; but it is stated as a judgment on the third Monday in October, in the year 1851, which it appears was the first day of the term. But it also appears that two exceptions were taken at the trial by the plaintiffs, one dated the 20th and the other the 22d of November; so that the judgment would seem to have been rendered a few days before the December term, 1851, of this court. No steps were taken to bring it here for revision, until the 27th of May, 1853, when an appeal bond was approved by the presiding judge, which recites that the plaintiffs had obtained a writ of error, returnable to the next term of this court, and filed it in the clerk's office. No such writ of error, however, appears to have been issued. A paper, purporting to be a writ of error, was issued after the commencement of December term, 1853; that is, on the 17th of that month. This paper is made returnable to the Supreme Court in general terms, without naming any day or even any term at which the defendants were required to appear. The transcript before us also contains a citaion, signed by the presiding judge, and the service is acknowledged by the attorney for the defendants. But the citation, like the paper purporting to be a writ of error, specifies no day or term at which the defendants are required to appear, and, moreover, is not itself dated. No further proceedings were had, to bring up the case, until December term, 1856, when the record was filed without any other writ of error, bond, or citation; and at the same term the defendants, by their counsel, appeared in this court. It is evident, from this statement, that the case is not before the court. The act of 1789, sec. 22, requires that the writ of error should be made returnable on a certain day, therein named; and, indeed, upon common-law principles, a certain return day in a writ of error is essential to its validity. There is therefore no process by which the case is legally brought before this court, and consequently we have no jurisdiction over it. And if the process was free from exception, and if a writ of error, such as is known and recognised by law, had been issued and filed in the Circuit Court, yet no transcript of the record was filed here until nearly three years afterwards; and this court have repeatedly said that the transcript of the record must be filed at the term next succeeding the issuing of the writ or the taking of the appeal, in order to bring the case within the jurisdiction of this court. But it is said, on behalf of the plaintiffs in error, that these are mere irregularities, which were waived by the general appearance at the last term, and that the motion at the present term is too late. Undoubtedly the appearance of the defendants at the last term, without making a motion to dismiss, cures the defect in the citation. The citation is nothing more than notice to the party to appear at the time specified for the return of the writ of error. And if he appears, it shows that he had notice; and if he makes no objection during the first term to the want of notice, or to any defect in the citation, he must be regarded as having waived it. The citation is required for his benefit, and he may therefore waive it if he thinks proper, and proceed to trial in the appellate court. This point was decided in the case of the United States v. Yulee et al., 6 How., 603; but the court at the same time said that the appearance did not preclude the party from afterwards moving to dismiss for the want of jurisdiction, or upon any other sufficient ground. The same point was again decided in the case of Buckingham et al. v. McLean et al., 13 How., 150, in which the court said that a motion to dismiss for want of a citation must be made at the first term at which the party appears, and is too late if made at a subsequent term. But the want of a writ of error, such as is prescribed by the act of Congress, stands on different ground. And in the case of the United States v. Curry, 6 How., 118, the court held, that where the power of the court to hear and determine a case is conferred by acts of Congress, and the same authority which gives the jurisdiction points out the manner in which it shall be brought before us, we have no power to dispense with the provisions of the law, nor to change or modify them. Upon this ground, the case is not legally before us, and must be dismissed for want of jurisdiction.
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61.US.6
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Where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the Government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate the conflicting claims. Therefore, in a case where the register and receiver of public lands have been imposed upon by ex varte affidavits, and the patent has been obtained by one having no interest secured to him in virtue of the pre-emption laws, to the destruction of another's right who had a preference of entry which he preferred and exerted in due form, but which right was defeated by false swearing and fraudulent contrivance brought about by him to whom the patent was awardedin such a case, the jurisdiction of the courts of justice is not ousted by the regulations of the Commissioner of the General Land Office.
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In November, 1842, William Wynn (the complainant below) proved that he had a preference of entry to the quarter section of land in dispute, according to the act of 1838, and his entry was allowed. In February, 1843, Samuel Hemphill made proof that he had a right of pre-emption to the same land, under the act of May 26th, 1830. The two claims coming in conflict, it was decided by the register and receiver at the local land office, that Hemphill had the earlier and better right to enter the land; and in this decision the Commissioner of the General Land Office concurred. Wynn's entry being the oldest, it was set aside, his purchase-money refunded, and a patent certificate was awarded to Samuel Hemphill, who assigned it to Garland, the plaintiff in error, to whom the patent issued. The benefit of the patent was decreed to Wynn by the Supreme Court of Arkansas; to reverse which decree, Garland prosecutes his writ of error out of this court. It appears, from the allegations and evidence, that Garland procured the proofs, and was in fact the principal in obtaining a preference of entry in the name of Hemphill, and in causing Wynn's elder entry to be vacated; that the whole proceeding, on the part of Garland and Hemphill, was a mere imposition on the officers administering the public lands; that Hemphill never had any improvement on the northeast quarter of section 18, but that his improvement was on the northwest quarter of section 17, which adjoins the quarter section in controversy; and that Garland induced the witnesses, who made the proof before the register and receiver to establish Hemphill's preference of entry, to confound the quarter sections and their dividing lines, and misrepresented the extent of the cleared and occupied by Hemphill in 1829 and 1830; so that the witnesses ignorantly swore that the improvement and cultivation were in part on the northeast quarter of section 18, which was wholly untrue; and by which false swearing Wynn's entry was set aside, and Garland obtained a patent of the land. Garland insists, by an amended answer in the nature of a distinct plea, that, by the law of the land, the Circuit Court had no authority or jurisdiction to set aside or correct the decision of the register and receiver; and that their adjudication and judgment in granting and allowing the pre-emption rights to and in the name of Samuel Hemphill was final and conclusive, and cannot be inquired into, or in any manner questioned, modified, or set aside. This matter was put in issue; and the court below, when it decreed for the complainant, necessarily decided against the bar to relief set up and claimed under an authority of the United States. The question is, have the courts of justice power to examine a contested claim to a right of entry under the pre-emption laws, and to overrule the decision of the register and receiver, confirmed by the Commissioner, in a case where they have been imposed upon by ex parte affidavits, and the patent has been obtained by one having no interest secured to him in virtue of the pre-emption laws, to the destruction of another's right, who had a prefence of entry, which he preferred and exerted in due form, but which right was defeated by false swearing and fraudulent contrivance brought about by him to whom the patent was awarded? The general rule is, that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the Government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate the conflicting claims. Such was the case of Comegys v. Vasse, (1 Peters, 212,) and the case before us belongs to the same class of ex parte proceedings; nor do the regulations of the Commissioner of the General Land Office, hwereby a party may be heard to prove his better claim to enter, oust the jurisdiction of the courts of justice. We announce this to be the settled doctrine of this court. It was, in effect, so held in the case of Lytle v. The State of Arkansas, (9 How., 328;) next, in the case of Cunningham v. Ashley, (14 How.;) and again in the case of Bernard v. Ashley, (18 How., 44.) It is ordered that the decree of the Supreme Court of Arkansas be in all things affirmed.
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60.US.82
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Maritime liens are ,trictijuris, and will not be extended by construction. Contracts for the future employment of a vessel do not, by the maritime law, hypothecate the vessel. The obligation between ship and cargo is mutual and reciprocal, and does not tdke place till the cargo is on board. An agreement between owners of vessels to form a line for carrying passengers and freight between New York and San Francisco, is but a contract for a limited partnership, and the remedy for a breach of it is in the common-law courts.
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THIS was an appeal from the Circuit Court of the United States for the district of California. It was a libel, filed originally in the District Court, by Vandewater, against the steamer Yankee Blade, for a violation of the following agreement: 'This agreement, made this twenty-fourth day of September, 1853, at the city of New York, between Edward Mills, as agent for owners of steamship Uncle Sam, and William H. Brown, as agent for the owners of steamship America, witnesseth, that said Mills and Brown hereby agree with each other, as agents for the owners of said ships before named, to run the two ships in connection for one voyage, on terms as follows, viz: 'Of all moneys received from passengers, and for freight contracted through, between New York and San Francisco, both ways, the Uncle Sam shall receive seventy-five per cent., and the America shall receive twenty-five per cent. The money to be received here, by said E. Mills, and the share of the America to be paid over to William H. Brown, or to his order, (before the sailing of the ship,) and the the share due the America, of moneys received on the Pacific side, to be paid over to said Brown, or to his order, immediately on the arrival of the passengers in New York, by E. Mills, who guaranties, as agent aforesaid, the true and honest return of all funds received by his agents on the Pacific. It is understood that this trip is to be made by the Uncle Sam, leaving San Francisco on or about the 15th of October, and the America leaving New York on or about the 20th of October next. 'Each ship is to pay all expenses of her running and outfits, and to be responsible for her own acts in every respect. Each ship is to retain all the money received for local freight or passengers; that is, for such freight and passengers as only pay to the ports the individual ship runs to, without any division with the other ship. 'No commissions are to be charged anywhere on any receipts for the America, by said Mills, in division, but the expense of advertising and the amount paid out for runners, at all points, are to be borne by each ship in the same proportion as receipts are divided between them. 'In consideration of all the above well and truly performed in good faith, Edward Mills, as agent for the steamship Yankee Blade, hereby agrees, that when the America arrives at Panama, on her voyage hence for the Pacific ocean, said ship Yankee Blade shall leave New York at such time as to connect with the America, conveying passengers and freight on the same terms as is herein before agreed, (say 25 per cent. to the Yankee Blade, and 75 per cent. to the America.) Provided, only, that said connection shall be made at a time that will not prevent the Yankee Blade from making her connection with the Uncle Sam, at her regular time.' After the usual preliminary proceedings in cases of libel, the proctors for the claimant filed the following exceptions: The exceptions of Edward Mills, claimant and sole owner of the steamship Yankee Blade, to the libel of Robert J. Vandewater, libellant, allege that the said libel is insufficient, as follows: First Exception.—That, on the face of said libel, it appears that the alleged cause or causes of action therein set forth, are not within the admiralty and maritime jurisdiction of this honorable court. Second Exception.—There is no cause of action set forth in said libel, whereby the said steamship Yankee Blade can be proceeded against in rem in this honorable court. Third Exception.—On the face of said libel, it appears the libellant is not entitled to the relief therein prayed for, nor to any decree against the said steamship. And, therefore, the said claimant prays that the said libel may be dismissed with costs. In June, 1855, the district judge sustained the exceptions, and dismissed the libel, whereupon the libellant appealed to the Circuit Court. In September, the Circuit Court affirmed the decree, and the libellant brought the case up to this court. It was argued by Mr. Cutting for the appellant, and Mr. Blair for the appellee. I. Agreements for carrying passengers and freight on the high seas are maritime contracts, pertaining exclusively to the business of commerce and navigation, and may be enforced specifically against the vessel by courts of admiralty proceeding in rem. No express pledge is necessary in order to create the lien. The jurisdiction in rem for breach of contracts of affreightments, by vills of lading or otherwise, is recognised by numerous cases. The ground of such jurisdiction rests upon the maritime nature and subject-matter of the contract. 6 How. U. S. R., 392. Contracts to carry passengers are analogous in principle. They are of a maritime nature in their essence and subject-matter; and when entered into with a particular ship, they bind her to the due performance of the service. The Pacific, 1 Blatch. R., 576, and the cases and arguments there presented. II. This court has recognised and adopted this principle. 1. Maritime torts to passengers may be redressed in the admiralty in rem, by reason of the vessel being bound by the contract. S. B. New World v. King, 16 How. U. S. R., 469. 2. The case of the New Jersey Steam Navigation Company v. The Merchants' Bank, 6 How. U. S. R., 392, establishes that contracts to be executed on the seas are maritime in their nature, and within the admiralty jurisdiction, as well in personam as in rem. The principle of that case embraces the present. III. The contract, by Mills, as agent of the owners of the Yankee Blade, to proceed from New York with passengers and freight, to carry them to Panama, and to deliver them to the America, to be carried by her to San Francisco, is for a maritime service, to be performed upon the sea, and within the jurisdiction of the District Court of the United States. 1. The mode or rate of compensation to be paid therefor does not affect the jurisdiction of the court. The action is for a non-performance of the contract—not for an accounting. The circumstance that the amount of damages might, in part, depend upon the number of passengers that would have been carried, is of no consequence. 2. The agreement did not constitute a partnership between the steamers. Neither party had any joint interest in the vessel of the other, or in the voyage; there was no sharing of losses; each ship was to pay her own expenses of running and of outfits, and was responsible for her own acts in every respect. The agreement to divide gross receipts was merely a mode of ascertaining the compensation to each vessel, for her separate services. 3. Even if the agreement were to be treated as a mutual arrangement between two vessels, for a joint service, to be rendered by them, on the sea—the compensation therefor to be an apportionment between them, of the whole freight and passage money to be earned by both—it would be a maritime contract, over which the admiralty has jurisdiction. 3 How., 568. 4. The contract is not one merely preliminary to a charter-party, but is a complete arrangement, to be treated as a charter-party, containing in itself the substantial provisions of such an instrument—a definite voyage to be performed on one side, and a definite compensation to be paid therefor by the other side. 3 Sum. R., 144, 148, 149. Each vessel hired the use and employment of the other, for the proposed adventure; each was to receive, as compensation for such hiring, a certain sum, proportioned to the receipts of both vessels, for that trip. The distinctive characteristics of a charter-party are found. The question of jurisdiction does not depend upon the particular name or character of the instrument, but whether it imports a maritime contract or not. The Tribune, 3 Sum. R., 144, 148. 5. The objection of the Circuit Court, that the contract was made by the owners, at the home port, does not appear to be authorized by any fact established in the case. The allegation of residence in the claim, (p. 8,) was merely formal, and not issuable. It does not appear where the owner or owners of the Yankee Blade resided at the time of the contract, nor what was her home port. 6. But assuming that the Yankee Blade belonged to New York, and that her owners resided there at the time of the contract, the Circuit Court erred in supposing that there could be no lien for that reason. The existence of a lien depends on the nature of the contract; and if that be maritime, and creates a lien, the circumstance that it is executed by the owner in person does not affect it. 1 Valin Ord. de la Mar., 630, Liv. III, Tit. I, Art. II; 2 Boul. Pat. Droit Com., 298; 3 Pardessus Lois Mar., 159; Ib., 281, 427; 2 Boucher Consul., 379, sec. 675; p. 457, sec. 870; 4 Pardessus, p. 40. Contracts of affreightment and to carry passengers are frequently (and in New York most generally) made by the owners, or their immediate agents, in the home port. When bills of lading are signed in the home port by the owner, the lien of the shippers exists equally, as if the master had signed them. The following are cases of liens created by contracts made with the owners in the home port: The Pacific, 1 Blatch. R., 576; The Aberfoyle, Ib., 207; Bearse v. Pigs Copper, 1 Sto., 314; The Mary, 1 Paine R., 671; The Draco, 2 Sum., 179. 7. The conclusion of the learned circuit judge, that this was a personal agreement between the owners of the two ships, and that a personal credit existed, which excluded the idea of a lien on the vessels, is not authorized by the facts. The contract describes each of the parties to it, 'as agent' of the owners. The 'agents' acted as representatives of the vessels; the owners are not named or referred to. The inference is, that a mere personal credit was not relied on, to the exclusion of a lien. 1. That the contract on which this proceeding is founded, is not a maritime contract. It is an agreement between the owners of two steamships, to run their vessels in combination, in the transportation of freight and passengers, between New York and San Francisco, and to divide the proceeds between them; and also an engagement, by one of the parties who is to receive all the money, to pay over to the other his proportion. So much of this contract as relates to maritime service is but preliminary. No maritime service is contracted for, one to the other. Such services are thereafter to be contracted for, and rendered to other persons by both the parties. In such case, there is no jurisdiction. Sheppard v. Essex Ins. Co., 3 Mason, 6. There is no difference in principle in this, from the contract which this court considered in the case of Phoebus v. The Orleans, (11 Peters, 175.) The owners of the Orleans had an agreement to combine their means, and, as part owners, to run a single vessel for the public accommodation. Here is a combination, in which different vessels are run for the same purpose. The court would take no account between the owners of the Orleans. Whether one of the parties to the enterprise had failed to contribute his share, was not a subject of admiralty jurisdiction. There is no difference, as affects that question, whether it be alleged, as in the case of the Orleans, that one party had contributed more than the other towards the enterprise, or whether, as in this case, it be alleged that one party refused to contribute at all. The similitude of the contracts would be obvious, if the claim here were for the earnings of the trip contemplated in the contract. But it is in right of such earnings that this suit is brought, and though no such earnings were received as were contemplated, it is alleged that this is the fault of the other party, and should not prevent an accounting as if they had been actually received. Consortship, it is true, is treated as a class of maritime contracts by Judge Conkling, pp. 15, 236, 849, of his Admiralty Jurisdiction. But he says the case of Andrews v. Wall, 3 Howard, p. 568, is the only reported case relating to it. But the question there was, not whether consortship was a maritime contract, but related to the distribution of salvage among those entitled. The consort contract was incidental only, and was considered merely so far as to see whether it was subsisting at the time of the wreck. The nature of the consideration of the contract was not material. The case of Cutter v. Roe, 7 Howard, 730, also shows that the nature of the consideration will not give character to a contract, or give jurisdiction even in personam. 2. But if this be regarded a maritime contract at all, it is certainly only partly so; the object, as between the parties, being to stipulate for the division of the proceeds to accrue to them from their services to others. It therefore falls within the case of Plummer v. Webb, 4 Mason, 380, and L'Arena v. Manwaring, Bee, 199, in which the court declined jurisdiction, because the whole contract was not of a maritime nature. 3. But the proceeding is in rem, and the advocates of the largest measure of admiralty jurisdiction for the district courts admit that they have not jurisdiction to enforce maritime contracts by such proceedings, unless the contract expressly or by implication creates a lien on the ship. The Draco, 2 Sumner, 180. It is contended that this contract is in the nature of a charter-party, and therefore a lien is implied. See definition of charter-party, Abbott, p. 241. It is certainly not a contract for the hiring of a ship, or any part of one; nor is it a contract for the transportation of persons or property. The parties to such contracts are carriers on one side, and freighters, charterers, or passengers, on the other. Here is merely an arrangement between carriers, in contemplation of making such contracts, to enable them to co-operate in fulfilling them, and for the division of the proceeds between themselves. No maritime service is rendered to each other. The relations to each other are those of employees of a common employer; and it is expressly stipulated that each is to render to their common employers the service contemplated, at their own cost and risk. The contracting parties are neither of them freighters or passengers, and there is not the remotest analogy upon which to found a claim for the remedies allowed such parties by the maritime law. But even an express contract of affreightment creates no lien on the vessel till the cargo is shipped. Schooner Freeman v. Buckingham, 18 Howard, p. 188. 4. The case of Blaine v. Carter, 4 C., 331, shows that the law does not favor implied hypothecations of the ship in obligations executed by the owner in the home port; and this is admitted by Judge Story in the case of the Draco above cited. In the absence of any precedent or established usage creating a lien in like cases, with reference to which the parties could be presumed to have contracted, there ought to be explicit language in the contract itself to create such a lien. It would be mischievous to annex liens by implication to such contracts; there would be nothing to give notice of their existence; they are not accompanied by possession, and so are not lost by being out of possession; and they do not arise from any shipments, supplies, or services, or other transactions which can be seen or known—so there would be no safety to the purchaser of vessels, if liens can be so created. Mr. Justice GRIER delivered the opinion of the court. The libel in this case sets forth a contract between the owners of certain steamboats, of which the Yankee Blade was one, to convey freight and passengers between New York and California. Among other things, it was agreed that the America should proceed to Panama, and the Yankee Blade should leave New York at such time as to connect with the America. The owner of the Yankee Blade refused to employ his vessel according to this agreement, and sent her to the Pacific under a contract with other persons. For this breach of contract the libellant demands damages, assuming that the vessel is subject, under the maritime law, to a lien which may be enforced in rem in a court of admiralty. The Circuit Court dismissed the libel, being of opinion 'that the instrument is of a description unknown to the maritime law; that it contains no express hypothecation of the vessel, and the law does not imply one.' In support of his allegation of error in this decree, the learned counsel for the appellant has endeavored to establish the following proposition: 'Agreements for carrying passengers are maritime contracts, pertaining exclusively the business of commerce and navigation, and consequently may be enforced specifically against the vessel by courts of admiralty proceeding in rem.' Assuming, for the present, the premises of this proposition to be true, let us inquire whether the conclusion is a legitimate consequence therefrom. The maritime 'privilege' or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a 'jus in re,' without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the State courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice; it is therefore 'stricti juris,' and cannot be extended by construction, analogy, or inference. 'Analogy,' says Pardessus, (Droit Civ., vol. 3, 597,) 'cannot afford a decisive argument, because privileges are of strict right. They are an exception to the rule by which all creditors have equal rights in the property of their debtor, and an exception should be declared and described in express words; we cannot arrive at it by reasoning from one case to another.' These principles will be found stated, and fully vindicated by authority, in the cases of The Young Mechanic, 2 Curtis, 404, and Kiersage, Ibid., 421; see also Harmer v. Bell, 22 E. L. and E., 62. Now, it is a doctrine not to be found in any treatise on maritime law, that every contract by the owner or master of a vessel, for the future employment of it, hypothecates the vessel for its performance. This lien or privilege is founded on the rule of maritime law as stated by Cleirac, (597:) 'Le batel est oblig ee a la marchandise et la marchandise au batel.' The obligation is mutual and reciprocal. The merchandise is bound or hypothecated to the vessel for freight and charges, (unless released by the covenants of the charter-party,) and the vessel to the cargo. The bill of lading usually sets forth the terms of the contract, and shows the duty assumed by the vessel. Where there is a charter-party, its covenants will define the duties imposed on the ship. Hence it is said, (1 Valin, Ordon. de Mar., b. 3, tit. 1, art. 11,) that 'the ship, with her tackle, the freight, and the cargo, are respectively bound (affect ee) by the covenants of the charter-party.' But this duty of the vessel, to the performance of which the law binds her by hypothecation, is to deliver the cargo at the time and place stipulated in the bill of lading or charter-party, without injury or deterioration. If the cargo be not placed on board, it is not bound to the vessel, and the vessel cannot be in default for the non-delivery, in good order, of goods never received on board. Consequently, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive cargo and depart on her voyage according to contract, the charterer has no privilege or maritime lien on the ship for such breach of the contract by the owners, but must resort to his personal action for damages, as in other cases. See 2 Boulay, Paty Droit Com. and Mar., 299, where it is said, 'Hors ces deux cas, (viz: default in delivery of the goods, or damages for deterioration,) il n'y a pas de privilege a pretendre de la part du marchand chargeur; car si les dommages et interets n'ont lieu que pour refus de depart du navire, pour depart tardif ou precipite, pour saisie du navire ou autrement il est evident que a cet egard la cr eance est simple et ordinaire, sans aucune sorte de privilege.' Thus, in the case of the City of London, (1 W. Robinson, 89,) it was decided that a mariner who had been discharged from a vessel after articles had been signed, might proceed in the admiralty in a suit for wages, the voyage for which he was engaged having been prosecuted; but if the intended voyage be altogether abandoned by the owner, the seaman must seek his remedy at common law by action on the case. And this court has decided, in the case of The Schooner Freeman v. Buckingham, 18 Howard, 188, 'that the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it.' Now, the damages claimed by the libellant, in this case, are not for the non-delivery of merchandise or cargo at the time and place according to the covenants of a charter-party, or for their injury or deterioration on the voyage, but for a refusal of the owners to employ the vessel in carrying passengers and freight from New York, so as to connect with the America when she should arrive at Panama. The owners have not made it a part of their agreement that their respective vessels should be mutually hypothecated as security for the performance of their agreement; and, as we have shown, there is no tacit hypothecation, privilege, or lien, given by the maritime law. We have examined this case from this point of view, because the libel seems to take it for granted that every breach of contract, where the subject-matter is a ship employed in navigating the ocean, gives a privilege or lien on the vessel for the damages consequent thereon, and because it was assumed in the argument, that if this contract was in the nature of a charter-party, or had some features of a charter-party, the court would extend the maritime lien by analogy or inference, for the sake of giving the libellant this remedy, and sustaining our jurisdiction. But we have shown this conclusion is not a correct inference from the premises, and that this lien, being stricti juris, will not be extended by construction. It is, moreover, abundantly evident that this contract has none of the features of a charter-party. A charter-party is defined to be a contract by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. (Abbott on Ship., 241.) Now, by this agreement, the libellant has not hired the Yankee Blade, or any portion of the vessel; nor have the master or owners of the ship covenanted to convey any merchandise for the libellant, nor has he agreed to furnish them any. But the agent for the Yankee Blade 'agrees that when the America arrives at Panama, the Yankee Blade shall leave New York, conveying passengers and freight,' which were afterwards to be received by the America, and transported to San Francisco; and the passage money and freight earned was to be divided between them—25 per cent. to the Yankee Blade, and 75 to the America. This is nothing more than an agreement for a special and limited partnership in the business of transporting freight and passengers between New York and San Francisco, and the mere fact that the transportation is by sea, and not by land, will not be sufficient to give the court of admiralty jurisdiction of an action for a breach of the contract. It is not one of those to which the peculiar principles or remedies given by the maritime law have any special application, and is the fit subject for the jurisdiction of the common-law courts. The decree of the Circuit Court is therefore affirmed.
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60.US.211
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"Where a patentee is about to. apply for a renewal of his patent, and agrees with another person that, in case of success he will assign to him the rene*ed patent, 1 and the patent is renewed, such an agreement is valid, and conveys to the assignee an equitable title, which can be converted into a legal title by paying, or offering to pay, the stpulated consideration. in agreement lietween Chaffee, the patentee, and Judaon, after the renewal, reciting that the latter had stipulated to pay the expenses of the renewal, nd make an allowande to the patentee of $1,200 a year, during the renewed term, and then declaring: "Now, L (Chaffee)4o hereby, in consideration of the premises, and to place my patent so that in case of mydeath, or other accident or event, it may entire to the benefit of Charles.Goodyear, and those who hold right to the use of sald patent, under and in onnection with his licensee s, &c., nominate, constitute, and appoint, said William Judson my trustee and attorney irrevocable, to hold said patent and have the control thereof, so as none shall have alicense to use said patent or invention, &e., other than those who had a right when said patent was extended, without the written consent of said Judson, &c.," -passed the entire ownership in the patent, legal and equitable, to Judson, for the benefit of Goodyear and those holding rights under him. If this annuity was -not regularly paidd, the original patentee had no right to revoke the power of attorney, and assign the patent to another party. His right to the a nuity rested in covenant, for a.breach of which he had an adequate remedy at law. Evidence tending to show that the agreement between the patentee and the attorney had been produced by the fraudulent representations of the latter, in respect to transactions out ofw hich the agreement arose, ought not to have been received, It being a sealed instrument. In a court of law, between parties or privies, evidence of fraud is admissible only wheie it goes to the question whether or not the instrument ever had any legal existence. But it was especially proper to exclude it in this case, where the agreement had been partly executed, and'rights of long standing had grown up under it;
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THIS case was brought up, by writ of error, from the Circuit Court of the United States of the district of Rhode Island. It was an action brought by Day against Hartshorn and Hayward, for the violation of a patent for the preparation and application of India-rubber to cloths, granted to E. M. Chaffee in 1836, and renewed for seven years in 1850. Day claimed under an assignment of this patent from Chaffee, on the 1st of July, 1853. The defences taken by Hartshorn and Hayward are stated in the opinion of the court, in which there is also a succinct narrative of the whole case. The defendants below first pleaded four special pleas, which were overruled upon demurrer. They then gave notice of eleven defences, assailing the validity of the patent. The record was very voluminous, being upwards of a thousand printed pages. One hundred and thirty-five exceptions were taken during the progress of the trial, which lasted for six weeks. After the testimony was closed, the counsel for the defendants offered seventy-four propositions to the court, by way of instruction to the jury, and six supplemental ones with regard to the fraud alleged to have been practised upon Chaffee by Judson. The court then charged the jury as contained in fifteen printed pages of the record, and the case came up to this court upon the following exception: The court refused to instruct the jury as requested by the defendant's counsel, except so far as the propositions presented by them were adopted or approved in the charge as made, and refused to charge otherwise than as the jury had been instructed. The defendant's counsel excepted to such refusals, respectively, and also to the refusal of said court as to each of said requests. They also excepted to each instruction given by the court contrary to such requests, or either of them. All this vast mass of matter was open to argument in this court. It was argued by Mr. O'Connor, upon a brief filed by himself and Mr. Brady for the plaintiffs in error, and by Mr. Richardson and Mr. Jenckes for the defendant, upon which side, also, a printed argument was filed by Mr. Gillet. There is only room to notice the general points taken by the respective counsel, omitting all subdivisions and illustrations. These would occupy half a volume. The points made on behalf of the plaintiffs in error were the following: First Point.—The agreement of May 23, 1850, was a valid executory agreement by Chaffee to sell and convey to Goodyear the renewed patent now in question, in case such a patent should issue; and, upon its issue, the equitable ownership thereof vested in Goodyear, subject only to the license reserved to Chaffee to use it in his own business. (Curtis on Patents, secs. 195, 196.) Second Point.—Chaffee having, by the agreement of September 5, 1850, without notice to Goodyear, without his consent, and, as it would appear, against his will, made another deposition of the patent, and having thereby put it entirely out of his (Chaffee's) power to execute a formal assignment to Goodyear, and thus entitle himself to the payment of the $1,500 by Goodyear, which formed the only condition precedent to a complete investiture of Goodyear with at least the whole equitable ownership of the patent, he, Chaffee, and Day, his assignee, are precluded from availing themselves of such nonpayment by Goodyear as an objection to the use of the patented invention by Goodyear and his licensees. (Hockster v. Delatour, 2 Ellis and Blackburn, 688, and cases cited.) Third Point.—The agreement between Chaffee and Judson, dated September 5, 1850, construed by itself alone, or in connection with the supplement thereto, dated November 12, 1851, and whether read, as it rightfully may be, in the light of surrounding and attending circumstances, or without such aid, (6 Peters, 68,) was, on the part of Chaffee, an executed contract. No further act of any kind was to be performed on his part; and, as it contained no condition subsequent, nor any clause of cessor, nor any reservation of power to rescind for any cause, the interest vested by it in Judson and his cestuis que trust could not be divested by Judson's omission to make prompt and punctual payments of the annuity. (Brooks et al. v. Stolley, 3 McLean, 526; Woodworth v. Weed, 1 Blatch., 165.) Fourth Point.—Although it is not deemed material whether the interest acquired by Judson under the agreements between him and Chaffee was of an equitable or legal character, it is submitted that the whole legal title to the patent was thereby vested in Judson, subject to the license reserved to Chaffee to use the invention in his own business. Fifth Point.—If the grant or agreement set forth in the paper dated September 5, 1850, is to be regarded as having been authenticated by the seal of Chaffee, and the actual execution by him, when of sound mind, of full age, and with knowledge of its contents, was established, neither Chaffee, nor Day, the plaintiff, who was his assignee and privy in estate, could be permitted to allege or prove, in a court of common law, for the purpose of defeating such grant or agreement, or for the purpose of varying its effect, that Chaffee was induced to execute it by threats of a lawsuit, or of hostility, or by false, deceitful, or fraudulent representations. Sixth Point.—The court below erred in admitting the evidence of Woodman and Chaffee, touching the alleged fraudulent representations, and also in submitting the allegation of fraud to the jury, notwithstanding Woodman's professed nonrecollection that the instrument bore a seal when executed, and his asserted, but groundless disbelief of that fact. Seventh Point.—Independently of the positions assumed in the preceding fifth and sixth points, the court erred in submitting it to the jury, to find that the instrument of September 5, 1850, was obtained by fraud, because there was no legal evidence in the case to support that allegation. (The other points related to the pleas and demurrers.) The points made on behalf of the defendant in error are taken from the brief of Mr. Jenckes, omitting all except those which relate to the power of Chaffee to revoke the power of attorney to Judson, and to assign the patent to Day. I. The paper of the 5th of September, 1850, supposing it to have been untainted with fraud, conveyed no interest in the extended patent to Judson, or to Goodyear and his licensees. There is no word of grant or conveyance in it. It does not purport to give a license directly to Goodyear or his licensees. It gives Judson no power to grant licenses to any one. II. The paper of the 5th September, 1850, offered a license to no persons except those who had a right to use the Chaffee patent at the time of its extension. Hartshorn had no license to use the inventions of either Goodyear or Chaffee during the original term of the Chaffee patent. His license to use Goodyear's inventions was given on the 1st of February, 1851. III. The legal title of the patent remained in Chaffee, and any action at law for an infringement must have been brought in his name, before his assignment to the defendant in error. IV. The instrument bearing date November 12th, 1851, being between the same parties, and having relation to the same subject-matter, and purporting to be made for the purpose of correcting errors and omissions in the instrument of September 5th, 1850, the two must be taken togother as one instrument, and be so construed. V. This instrument makes clear what was of doubtful construction in the former paper, and defines and limits the power of Judson, and the rights and interests which Goodyear and his licensees were to receive, and sets forth the conditions on which they were to receive them. Judson is, for the first time, empowered to grant licenses as Chaffee's attorney, and Goodyear and his licensees are to have licenses through Judson, solely upon the condition of their severally contributing their share of the amount due Judson for services and expenses. Judson was not empowered to license any others but the Goodyear licensees. With respect to all other persons, the power to license was annexed to the legal title which remained in Chaffee. Judson was authorized to sue infringers, but he was not required to do so. If the Goodyear licensees should not comply with the condition on which they were to receive a license to use the Chaffee patent, they might be sued as infringers, and Judson could reimburse himself out of the damages, or by compromising the suit by giving them a license on the terms required. Chaffee had a right to impose this or any other condition, and he was interested in having this condition performed, as he would thereby be relieved from his debt to Judson. VI. So far as regards the rights of Chaffee, Goodyear and his licensees, and Judson, this instrument is a substitute for the provisions respecting the same subject-matter in that of September 5th, 1850. These parties are bound by the facts recited in it, or which are necessarily to be inferred from it. VII. Neither of these instruments gives Judson any interest in the patent itself, or in the profits of the patent, nor do they give him a right to use it, or to license others to use it, except upon conditions precedent, clearly and distinctly specified. Chaffee intended to give him security for the debt due him, and pointed out the fund from which the debt was to be paid, if the parties named should keep their agreement; and Judson took for his security a mere power to collect his dues out of this fund by selling licenses, or by suing for damages. The only interest which Judson took was in the money which might be produced by licenses or by suit, and to the extent of his claim for money advanced for services and expenses. VIII. This instrument of November 12, 1851, was also executory, and is governed by the rules of law applicable to contracts executory in their nature, and to powers. So far as the licenses were concerned, Chaffee was the contracting party on the one part, and Goodyear and his licensees on the other. The contract was not executed until the licensees had complied with the conditions under which they were to have a license, and Chaffee parted with nothing until such performance by them. If they neglected or refused to comply, his right of rescission was perfect. So far as Judson was concerned, he held merely a power, from the proceeds of the execution of which he was to be paid, and to that extent the power operated as a security, and such power was revocable at any time, upon payment of the amount of the debt. Powers to sell on mortgages are declared to be irrevocable in terms, but the deed and power together are cancelled by payment of the mortgage debt. A power taken for security is revocable by the death of the grantor of the power. (Hunt v. Rousmaniere's Executors, 8 Wheat., 174.)It is also revocable by the party giving it. (Mansfield v. Mansfield, 6 Conn., 559.) In this case, the principles of the former case are adopted and carried out to their legitimate conclusions. A power is irrevocable only when there is an express stipulation that it shall be irrevocable, and when the agent has an interest in its execution. Both of these circumstances must concur. (Story on Agency, sec. 476.) The interest ceased, when Judson was offered the money for all his disbursements and services. There is no stipulation in the power of the 12th of November, 1851, that it shall be irrevocable. IX. If the paper of the 5th September, 1850, be construed to give a license directly to Goodyear and his licensees, upon their paying the expenses and annuity, then such license is revocable if the conditions be not performed. The instrument contains no words of grant or conveyance known to the common law. There are no covenants which would create an estoppel. The Goodyear licensees obtained nothing more than a license, not connected with any grant, or made part of any grant. Such a license is revocable at common law. (Thomas v. Lovell, Vaughan, 351.) 'A dispensation or license properly passeth no interest nor alters nor transfers property in anything, but only makes an action lawful, which without it would have been unlawful.' (Wood v. Leadbitter, 13 Mees. and W., 843.) 'A license is in its nature revocable.' X. Hartshorn & Co. were not within the class of persons described in the paper of the 5th of September, 1850, nor in the class to whom Judson was authorized to give licenses by the paper of the 12th of November, 1851. XI. The question of the performance of the condition of the papers of September 5, 1850, and November 12, 1851, after the papers had been construed by the court, was a question of fact for the jury. XII. If the jury had found that there was a failure on the part of Judson and of Goodyear and his licensees to perform their part of the agreement of September 5, 1850; that the annuity had not been paid; that the Shoe Associates knew of the non-payment; that Judson was the agent of Goodyear and his licensees in making the paper of 12th of November, 1851, and of the Shoe Associates in all matters relating to the Chaffee patent since its extension; and that there had been an offer in good faith to repay Judson all that had been expended by himself or advanced by the Shoe Associates, on account of this extended patent; then, upon these facts, the revocation of the powers given to Judson and the rescission of those contracts was proper on the part of Chaffee. The instrument of revocation, the tender of all sums due to Judson, and the notice to Hartshorn & Co., were sufficient. XIII. The title did not pass from Chaffee by the contracts of May 23, 1850, September 5, 1850, and November 12, 1851, in connection with the instrument executed between Goodyear and his licensees, dated July 1, 1848, in consideration of Judson's agreement in the paper of September 5, 1850, according to the prayer for instruction to the jury, which is made the subject of Exception 1. XIV. One test of the right of rescission or revocation is, to inquire whether the contract is one that a court of equity would specifically enforce, under the circumstances existing at the time the rescission or revocation is sought to be made. 'The rules of law relating to specific performance, and those applied to the rescission of contracts, although not identically the same, have a near affinity to each other.' (Boyce's Executors v. Grundy, 3 Peters, 210, 216.) The remaining points are omitted. Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the judgment of the Circuit Court of the United States, holden by the district judge in and for the district of Rhode Island. The action was brought by Day against the defendants below, for an alleged infringement of a patent for the preparation and application of India-rubber to cloths, granted to E. M. Chaffee, August 31, 1836, and renewed for seven years from the 31st August, 1850. The plaintiff claimed to be the assignee of the patent from Chaffee. The defendants sought to protect themselves under a license derived from Charles Goodyear, whom they insisted was the owner, and not Day, of the renewed patent. Goodyear became the owner of the unexpired term of the original patent on the 28th July, 1844, and on the same day granted to certain persons, called 'The Shoe Associates,' the exclusive use of all his improvements in the manufacture of India-rubber, patented, or to be patented, during the term of any patents or renewals which he might own, or in which he might be interested, 'so far as the same are, or may be, applicable to the manufacture of boots and shoes.' The defendants claimed a license under the Shoe Associates. Chaffee, the original patentee, made application to the Commissioner of Patents, the 22d May, 1850, for the renewal of his patent, in which he states that the then present owners were willing and desirous that it should be renewed, and in that event that they ought to make him further compensation for the invention. And on the next day, 23d May, 1850, he entered into an agreement with Goodyear, in which he stipulated to convey to him the patent, on its renewal for the extended term, in consideration of three thousand dollars. There seems to have been some agreement or understanding that the then owners of the patent, and their licensees, should be at the expense of the renewal. William Judson had become interested in one-eighth of the patent in 1846, by an assignment from Goodyear; and in 1848 he, in conjunction with Seth P. Staples, was appointed by Goodyear his attorney and agent, in taking out, renewing, extending, and defending his patents; and a fund was provided by Goodyear for defraying the expenses of these proceedings, and placed in the hands of Judson. By the consent of Goodyear, Judson subsequently became his sole agent and trustee of the fund for the purposes mentioned. The patent was renewed, in pursuance of the application, on the 30th August, 1850. Soon after this renewal, to wit, on the 5th September, 1850, an agreement was entered into between Chaffee and Judson, which recites the renewal, and that the expenses were large, and also that at the time of the renewal the patent was held by Goodyear for the benefit of himself and his licensees; and, further, that he had agreed with Chaffee, for himself and those using the patent under him, that they would be at the expense of the extension, and make an allowance to him, Chaffee, of $1,200 per annum, payable quarterly, during the period of the extension; and reciting also that Judson had had the management of the application for the renewal, and had paid, and became liable to pay, the expenses thereof, and had agreed to guaranty the payment of the annuity of $1,200; and the agreement then provided as follows: 'Now, I (Chaffee) do hereby, in consideration of the premises, and to place my patent so that in case of my death, or other accident or event, it may enure to the benefit of said Charles Goodyear, and those who hold a right to the use of said patent, under and in connection with his licensees, according to the understanding of the parties interested, nominate, constitute, and appoint said William Judson my trustee and attorney, irrevocable, to hold said patent, and have the control thereof, so as no one shall have a license to use said patent or invention, or the improvements secured thereby, other than those who had a right to use the same when said patent was extended, without the written consent of said Judson first had and obtained.' At the close of the agreement, Judson stipulates with Chaffee to pay all the expenses of the renewal, and also the annuity of $1,200; and also to be at all the expense of sustaining and defending the patent; and Chaffee reserves to himself the right to use the improvement in his own business. This contract was entered into without the privity of Goodyear, and changed materially the terms and conditions of that made by him with Chaffee on the 23d May. He was at first dissatisfied with the change when it came to his notice, but afterwards acquiesced. The contract continued in operation down to the 12th November, 1851, when a modification of the same took place. This last contract recites that there was an omission in that of 6th September, in not stating that if the said licensees continued to use the improvements, they should pay their just proportion of the expenses and services in obtaining the renewal, which it was intended they should pay to Judson; and recites also that there was no stipulation on the part of Judson to pay Chaffee $1,500 per annum, as claimed by him; and it is then agreed that the licensees shall pay their share of the expenses to Judson, as a condition to the granting of a license by him to them; and that, on the payment of such share of the expenses, a license shall be granted to them. And it was further agreed, that Judson should pay Chaffee the $1,500 per annum; and also that Judson might use Chaffee's name in the prosecution of infringements of the patent, or for any other purpose in relation to the use of it, he holding Chaffee harmless from all costs, &c., and he, Judson, to have all the benefits to be derived from said suits. It will be perceived that the only provision in this agreement differing from that of 6th September, in which Chaffee has any interest, is the one providing for an annuity of $1,500, instead of the $1,200. All the other provisions are for the benefit of Judson. This annuity was paid down to the 1st December, 1852, when some difficulty arose between Judson and Chaffee, and the payment ceased. And on the 1st July thereafter, Chaffee undertook, in consequence of this default, to revoke and annul the power and control of Judson over the patent, and to forbid his acting in any way or manner under the agreements of the 6th September, and of the 12th November, above referred to. And on the same day, for the consideration of $11,000, assigned the renewed patent to Day, the plaintiff in this suit. Day, on the 2d July, 1853, gave notice to Judson of the assignment, offering to pay, at the same time, all sums there might be due him, if any there were, for moneys advanced in procuring the extension of the patent, or in any other way paid for Chaffee on account of said patent. The above is the substance of the case, as appears from the written agreements of the parties in the record. The questions involved turn essentially upon the points: 1. As to the operation and effect to be given to the three agreements which have been referred to, and especially of that of the 6th September, 1850, between Chaffee and Judson; and 2. The force and effect of the attempted rescindment of these agreements by Chaffee, on the 1st July, 1853, on account of the neglect or refusal of Judson to pay the annuity of $1,500. 1. It is not important to examine particularly the agreement between Goodyear and Chaffee of 23d May, as that was, in effect, superseded by the one entered into with Judson, the 6th of September, to which Goodyear afterwards assented. It is important only as leading to the latter agreement, and may therefore assist in explaining its provisions. By this first agreement, Chaffee bound himself to assign to Goodyear the renewed patent, as soon as it was obtained, for the consideration of $3,000. Goodyear became thus equitably entitled to the entire interest in the patent during the extended term, and could have invested himself with the legal title on the payment, or offer to pay the three thousand dollars, had he not subsequently acquiesced in the modification of it with Judson. Judson was the owner, jointly with Goodyear, of one-eighth of the patent. He was also the agent and attorney of Goodyear, generally, in his applications for patents, in obtaining renewals, and in the litigation growing out of the business; and was the trustee of a fund provided by Goodyear to meet the expenses. It was, doubtless, on account of this interest of Judson in the improvement, and his general authority from Goodyear in the management of his patent concerns, that led him to enter into the new arrangement with Chaffee, of the 6th September, in the absence of his principal. Goodyear might have repudiated it, and insisted upon the fulfilment of the first agreement. He thought fit, however, after a full knowledge of the facts, to acquiesce; and his rights, therefore, and those claiming under him, must depend upon this second agreement. In respect to this agreement, whether the title which passed from Chaffee, in the renewed patent to Judson, was legal or equitable, the court is of opinion that the entire interest and ownership in the same passed to him for the benefit of Goodyear, and those holding rights and licenses under him. The instrument is very inartificially drawn, but the intent and object of it cannot be mistaken. Chaffee, in consideration of the premises, which included the annuity of $1,200, 'and (in his own language) to place my (his) patent so that in case of death, or other accident or event, it (the patent) may enure to the benefit of said Charles Goodyear, and those who hold a right to the use of said patent, under and in connection with his licensees,' &c., nominates and appoints 'said William Judson, my trustee and attorney irrevocable, to hold said patent, and have the control thereof, so that no one shall have a license, &c., other than those who had a right to use the same when said patent was extended, without the written consent of said Judson;' and at the close of the agreement, he reserves the right to use the improvement in his own business. At this time, as we have seen, Judson was the owner of one-eighth of the patent, and was the general agent and attorney of Goodyear in all his patent business transactions. It is apparent that the only interest in the patent, left in Chaffee, was the right reserved for his own personal use. The annuity and indemnity against the expenses of the renewal were the compensation received by him for parting with the improvement. The contract of the 12th November has no material bearing upon this part of the case. Most of the provisions were for the benefit of Judson, in relation to the licensees under Goodyear. The only provision important to Chaffee is the stipulation for the increased annuity of $1,500. 2. Then, as to the attempted rescindment of the contracts. The agreement of 6th September had been in force from its date down to the 1st July, 1853, a period of two years and nearly ten months. During all this time, the licensees of Goodyear, at the date of the renewal of the patent, and those whom Judson may have granted a license to since the renewal, had a right to use the improvement, and especially the Shoe Associates, referred to in their agreement with Goodyear, 1st July, 1848. Besides this stipulation with Goodyear, their right was expressly recognised by Chaffee himself, in the agreement with Judson of 6th of September. The effect of the rescindment as claimed, and which would be necessary to enable the plaintiff to succeed in his action against the defendants, would be to break up the business of these licensees, by divesting them of their rights under this agreement rights acquired under it from all parties connected with or concerned in the patent, and especially from Chaffee, the patentee, who placed it in the hands of Judson, for the benefit of Goodyear and those holding under him. The effect would also be to deprive Goodyear or Judson, or whichever of them had paid the expenses of obtaining the renewal, of the equivalent for those expenses, except as they might have a personal remedy against Chaffee. To the extent above stated, the agreement of the 6th September was already executed, and, in respect to parties concerned, the abrogation would work the most serious consequences. As we have already said, the ground upon which the right to put an end to the agreement is the refusal to pay the annuity of $1,500 after December, 1852. Judson proposed to Chaffee to resume the payment in June, 1853, which was declined; but we attach no importance to this fact, especially as we are in a court of law. But, in looking into the agreements of the 6th of September, and also the one of the 12th of November, the court is of opinion that the payment of the annuity was not a condition to the vesting of the interest in the patent in Judson, and of course that the omission or refusal to pay did not give to Chaffee a right to rescind the contract, nor have the effect to remit him to his interest as patentee. The right to the annuity rested in covenant, under the agreement of the 12th of November. One of the objects of that agreement was, to obtain from Judson this covenant. From the terms and intent of the agreement, the remedy for the breach could rest only upon the personal obligation of Judson, as, by the previous one of the 6th of September, the interest in the patent had passed to Goodyear and his licensees, and no default or act of Judson could affect them. Chaffee chose to be satisfied with the covenant of Judson, without stipulation or condition as it respected the other parties, and he must be content with it. The cases of Brooks v. Stolly, (3 McLean, 526,) and Woodworth v. Weed, (1 Blatchford, 165,) have no application to this case. The attempt to rescind the contracts, being thus wholly inoperative and void, in the opinion of the court, of course no interest in the patent passed to Day, under the assignment of the 1st July, 1853. Evidence was given on the trial in the court below, for the purpose of proving that the agreement of the 6th of September was procured from Chaffee by the fraudulent representations of Judson, which was objected to, but admitted. The general rule is, that in an action upon a sealed instrument in a court of law, failure of consideration, or fraud in the consideration, for the purpose of avoiding the obligation, is not admissible as between parties and privies to the deed; and, more especially, where there has been a part execution of the contract. The difficulties are in adjusting the rights and equities of the parties in a court of law; and hence, in the States where the two systems of jurisprudence prevail, of equity and the common law, a court of law refuses to open the question of fraud in the consideration, or in the transaction out of which the consideration arises, in a suit upon the sealed instrument, but turns the party over to a court of equity, where the instrument can be set aside upon such terms as, under all the circumstances, may be equitable and just between the parties. A court of law can hold no middle course; the question is limited to the validity or invalidity of the deed. Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread, or some other fraud or imposition has been practised upon the party in procuring his signature and seal. The fraud in this aspect goes to the question whether or not the instrument ever had any legal existence. (2 J. R., 177; 13 Ib., 430; 5 Cow., 506; 4 Wend., 471; 6 Munf., 358; 2 Rand., 426; 10 S. and R., 25; 14 Ib., 208; 1 Alab., 100; 7 Misso., 424; 4 Dev. and Bat., 436; C. and H., Notes, part 2, p. 615, Note 306, ed. Gould & Banks, 1850.) It is said that fraud vitiates all contracts, and even records, which is doubtless true in a general sense. But it must be reached in some regular and authoritative mode; and this may depend upon the forum in which it is presented, and also upon the parties to the litigation. A record of judgment may be avoided for fraud, but not between the parties or privies in a court of law. The case in hand illustrates the impropriety and injustice of admitting evidence of fraud to defeat agreements of the character in question in a court of law. We have a record before us of 1,055 closely-printed pages of evidence submitted to the jury, and a trial of the duration of some six weeks. Goodyear and his licensees had acquired vested and valuable rights under the agreements in this patent, and who were in no way privy to, or connected with, the alleged fraud, nor parties to this suit; and yet it is assumed, and without the assumption the fraud would be immaterial, that the effect of avoiding the agreements would be to abrogate these rights. They had been in the enjoyment of them for nearly three years, and may have invested large amounts of capital in the confidence of their validity. They were derived from Chaffee himself, the patentee of the improvement. A court of equity, on an application by him to set aside the agreements on the ground of fraud, would have required that these third parties in interest should have been made parties to the suit, and would have protected their rights, or secured them against loss, if it interfered at all, upon the commonest principles of equity jurisprudence. Some slight evidence was given in the court below, upon the question whether the agreement of the 6th of September was sealed at the time of the execution. But the instrument produced was sealed, and is recited in the subsequent agreement of the 12th November, as an agreement signed and sealed by the parties. A question was also made, as to the authority of the Shoe Associates to grant a license to the defendants. But they held under Goodyear the right to the exclusive use of the improvement for the manufacture of boots and shoes. They were competent, therefore, to confer the right upon the defendants. Besides, the point is not material in the view the court have taken of the case, as upon that view no interest in the patent vested in the plaintiff under the assignment from Chaffee. It will be seen, by a reference to the bill of exceptions, that upon our conclusions in respect to several points raised in the case, the rulings in the court below were erroneous, and consequently the judgment must be reversed, and a venire de novo awarded.
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60.US.280
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Where a fund is brought into court upon proceedings under a bill to foreclose a mortgage, it is altogetber irregular for the court to order an investigation into the general accounts between the attorney and his client during past years, and to order that the attorney shall be paid, out of the fund in court, the balance which the master may repoft to be due. The persons interested in this decree were not properly before the court as parties.
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This is an appeal from the District Court for the northern district of Alabama. The bill was filed to foreclose a mortgage, given to secure the payment of $12,000. Payments on this debt were made, amounting to the sum of $8,527, the last payment being made the 9th of October, 1839. An account was prayed, and that the mortgaged premises might be sold. A supplemental bill was filed the 30th of November, 1843, stating that the last instalment of the mortgage debt had become due, and praying that the premises might be sold to satisfy that payment also. The answer admitted the allegations of the bill, but claimed an additional credit of $600 on the mortgage. On the 23d of May, 1844, a final decree was entered, directing a sale of the mortgaged premises to pay the amount due, stated to be $10,077.68, with interest to the time of sale. Afterwards, at November term, 1848, the commissioner, who had been appointed to make the sale, returned that Cox, the defendant, had, without sale of the property, paid him the balance due under the decree, after deducting certain payments made before his appointment, which amounted to the sum of $8,318.47, which was brought into court. At that term an entry in the cause was made, by consent of the solicitors of the parties, that all matters of account between John H. Lewis and his late client, Thomas A. Ronalds, deceased, and between the said Lewis and John D. Wolfe, executor, and Maria D. L. Ronalds, executrix, of the last will and testament of Thomas A. Ronalds, be referred to the standing master in chancery, 'who was directed to report a statement thereof, and of all his proceedings relative thereto, to the next term of the court.' At November term, 1850, the master filed his report, which was exceedingly voluminous—covering more than two hundred and sixty pages of the record. The master states an account, in which he charges Lewis with all sums, and interest, from the time he became chargeable up to the date of the report, 25th of November, 1850, amounting to the sum of $63,461.71. He shows the amount of credits claimed by Lewis, to same date, amounting to the sum of $55,966.82. Exceptions were filed to this report by both parties; and at May term, 1854, the court made a final decree on the master's report; in which is set out the manner in which the controversy arose, and referring to the order of November term, 1848, founded upon the motion in the Cox case, to remove Lewis from his capacity as attorney, so as to procure the payment to the complainants directly of the proceeds under the decree brought into court. And the court states that it considers the proceedings, as presented, not within its cognizance, inasmuch as no writ had been issued as between these parties, no bill filed, and no suit in any form commenced; there was no allegation or charge on the one side, or response or denial on the other; nor was the matter collateral to, or growing out of, any case pending. On consideration, the court, though disposed to strike the matter from the docket, yet decreed that, as a large sum of money had been paid in under its order, it must be, in the language of the court, in some way paid out; and the exceptions to the master's reports were overruled, and the same was confirmed; and the marshal, as receiver, was ordered to pay over to Lewis the sum of $4,336.42 of the proceeds in his hands, and the residue, $3,982.05, he was directed to pay to the complainants. From this decree the complainants appealed. This was an irregular proceeding, and without the authority of law. The bill was filed originally against Bartley Cox, the defendant, against whom the decree for the sum of $10,077.68 was entered. This being done, Lewis procured an order for his dismissal from the case, that he might bring up an account against Thomas A. Ronalds in his lifetime, and his executors since his decease, for professional services. And this was done without the form of suit, or the matter having any relation to the case before the court. And when it is considered that Ronalds was a citizen of New York, and that his representatives are citizens of New York, and do not seem to have had any notice of this illegal procedure, it can receive no sanction from this court. It is contended that Lewis, as counsel, had a right to receive and receipt for moneys in the case; and whether he was entitled to reserve any portion thereof or not, can be properly tested only by a bill filed by the appellants against him to account. But the whole proceeding in behalf of Lewis, as against the complainants, was irregular and void, the court having no jurisdiction of the matter. The order was of no importance that the decree should be without prejudice to either party, and not pleadable in bar to any subsequent litigation between them upon the same subject-matter, as the proceedings were invalid. But, as regards the complainants, it was error in the court to order any part of its original decree in their favor to be paid to one who was not properly before it as a party. For this purpose, neither complainants, nor the defendant, Lewis, were before the court, or amenable to its jurisdiction. The decree is therefore reversed, with costs. And the court direct that an order be transmitted to the Circuit Court, to require the defendant, Lewis, to pay over any money received by him under the decree to the proper officer of the court, that it may be paid to the complainants.
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60.US.283
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The appellate jurisdiction of this court only includes cases where the judgment or decree of the Circuit Court is final. In chancery, a decree is interlocutory whenever an inquiry as to matter of law or fact is directed, preparatory to a final decision. But when a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree. Therefore, where a case was referred to a master, to take an account of rents and profits, &c., upon evidence, and from an examination of the parties, and to make or not to make allowances affecting the rights of the parties, and to report his results to the court, this was not a final decree. The preceding cases upon this subject, examined.
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This is an appeal from the Circuit Court of the United States for the district of Arkansas. We find, from our examination of the record, that the decree from which this appeal has been taken is not final, within the meaning of the acts of Congress of 1789 and 1803. It will therefore be dismissed for a want of jurisdiction. The right of appeal is conferred, defined, and regulated, by the second section of the act of March 2d, 1803, which, however, adopts and applies the regulations prescribed by the 22d, 23d, and 24th sections of the judiciary act of the 24th September, 1789, ch. 20, respecting writs of error. The language of both is, that final judgments and decrees, rendered in any circuit, &c., &c., may be reviewed in the Supreme Court, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars. It has been the object of this court at all times, though an accidental deviation may be found, to restrict the cases which have been brought to this court, either by appeal or by writ of error, to those in which the rights of the parties have been fully and finally determined by judgments or decrees in the court below, whether they were cases in admiralty, in equity, or common law. In the case of the Palmyra, (10 Wheat., 502,) where, in a libel for a tortious seizure, restitution with costs and damages had been decreed, but the damages had not been assessed, this court held that the decree was not final, and dismissed the appeal. It said, 'the decree of the Circuit Court was not final in the sense of the act of Congress. The damages remain undisposed of, and an appeal may still lie upon that part of the decree awarding damages. The whole cause is not, therefore, finally determined in the Circuit Court, and we are of the opinion that the cause cannot be divided so as to bring up distinct parts of it.' This court also ruled, in Brown v. Swann, (9 Peters, 1,) that a decree enjoining a judgment at law taxing a sum which remained to be ascertained with precision was not final, to permit an appeal from it. We might multiply citations from the reports of this court, to show its caution upon this subject. We feel very confident no case has been decided by it, when the question of the finality of a decree or judgment has been brought to its notice, in which the distinction between final and interlocutory decrees has not been regarded as it was meant to be by the legislation of Congress, and as it was understood by the courts in England and in this country, before Congress acted upon the subject. A decree is understood to be interlocutory whenever an inquiry as to matter of law or fact is directed, preparatory to a final decision. (1 New., 322.) And we find it stated in the second volume of Perkins's Daniel's Chancery Practice, 1193, 'that the most usual ground for not making a perfect decree in the first instance, is the necessity which frequently exists for a reference to a master of the court, to make inquiries, or take accounts, or sell estates, and adjust other matters which are necessary to be disposed of, before a complete decision can be come to upon the subject-matter of the suit.' When a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree. It is true, a decree may be final, although it directs a reference to a master, if all the consequential directions depending upon the result of the master's report are contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the entire and full benefit of the previous decision of the court. (Mills v. Hoag, 7 Paige, 18.) Testing, then, this decree by the citations just given from Daniel's Chancery Practice, from the case of Mills v. Hoag, our inquiry is, whether further action of the court in the nature of a decree would not be necessary to give to the defendant in error the benefit of the 'rents and profits received by the defendants in the court below, or which could or ought to have been received by them, or any of them, for any part of the premises,' which it had directed the defendants to surrender to the complainant; and whether the court's direction to the master, how he should take the accounts of rents and profits, and that no allowances were to be made by the master for improvements which the defendants had made, and that no account of rent was to be taken upon permanent and valuable improvements erected by them, do not involve rights in the respective parties, and a pecuniary uncertainty in respect to the sum to be paid by the defendant, which are only made certain and operative by a decree of the court upon the master's report. The court's direction was, 'that it be referred to the master, to take an account of the rents and profits received, or which could and ought to have been received, by the defendants, or any of them, for any part of the said premises; that he take such an account distributively as to the said Ashley and Beebe, in the lifetime of Ashley, and as to his heirs since his death, and as to said G. C. Walker since his purchases; that he make no allowances for improvements made by them, or either of them, and take no account of rent upon permanent and valuable improvements erected by them; and that he report to the court here, at the next term thereof. And it is further ordered, &c., that the defendants do pay the costs of this suit.' Thus leaving a sum to be ascertained with precision by the master from different elements, from which he is directed to make up the account, and those not merely consequential from the previous directions of the decree. Further, a decree from which an appeal may be taken must not only be final, but it must be one in which the matter in dipute, exclusive of costs, shall exceed the sum or value of two thousand dollars. The value of the subject-matter in controversy may be shown from the record, or by evidence aliunde, when it is disputed; and in this case the record discloses that to be such as would give the court jurisdiction; but the decree also shows that a sum is still unascertained between the parties, which may or may not exceed two thousand dollars, and, if it does, which may be the subject of another appeal. The object of the law, and the interpretation of it by this court, is to prevent a case from coming to it from the courts below, in which the whole controversy has not been determined finally, and that the same may be done in this court. We say, 'in which the whole controversy has not been determined.' Wherever it has been, and ministerial duties are only to be performed, though that be to ascertain an amount due, the decree is final. But the reference of a case to a master, to make an account upon evidence, and from the examination of the parties, and to make or not to make allowances affecting the rights of the parties, and to report his results to the court, is not a final decree; because his report is subject to exceptions from either side, which must be brought to the notice of the court before it can be available. It can only be made so by the courts overruling the exceptions, or by an order confirming the report, with a final decree for its appropriation and payment. We have just said the decree is final when ministerial duties are only to be done to ascertain a sum due. The case of Ray v. Law, in 3 Cranch, 179, is an instance. It was then ruled by this court, that a decree for a sale under a mortgage is such a final decree as may be appealed from. Afterwards, when that case was cited in the case of the Palmyra, (10 Wheat., 502,) Marshall, Chief Justice, said for the court: 'In that case, which was an appeal in an equity cause, there was a decree of foreclosure and sale of the mortgaged property. The sale could only be ordered after an account taken, or the sum due on the mortgage ascertained in some other way. And the usual decree is, that unless the defendant shall pay that sum in a given time, the estate shall be sold. The decree of sale, therefore, is in such a case final upon the rights of parties in controversy, and leaves ministerial duties only to be performed.' In such a case, the direction is but a consequence of the decree, and no further decree is necessary. So a decree upon the coming in of the master's report on a bill for specific performance, ascertaining the quantity of land to be conveyed, and the balance of money to be paid, and that the conveyance should be executed on such balance being tendered, is a final decree. (Navis v. Waters, 1 John. Ch., 85.) But in the last case cited, it would not have been final if the decree had not directed the conveyance of the land upon the sum found by the master being tendered. It has been supposed that this court did not apply its present interpretation of the laws regulating appeal in the cases of Whiting v. Bank of the United States, (13 Peters, 6,) of Michaud v. Girod, (4 How., 503,) and in Forgay et al. v. Conrad, (in 6 Howard, 201.) It is, however, not so. Whiting's case, in that part of it relating to appeals, was only what this court had said in Ray v. Law, in the case of the Palmyra, before cited, that a decree of foreclosure and sale is final upon the merits of the controversy, and an appeal lies therefrom. In Michaud v. Girod, no such point was made in the argument of it, nor touched upon in the opinion of the court. In Forgay's case, it was made upon the decree given by the court below, and it was adjudged by this court to be final to give this court jurisdiction of it. But it was so, upon the ground that the whole merits of the controversy between the parties had been determined, that execution had been awarded, and that the case had been referred to the master merely for the purpose of adjusting the accounts. The fact is, the order of the court in that case for referring it to a master was peculiar, making it doubtful, if it could in any way control or qualify the antecedent decree of the court upon the whole merits of the controversy, or modify it in any way, except upon a petition for a rehearing. We refer to the case, however, with confidence, to show that the reasoning of the opinion is cautionary upon the subject of bringing appeals, and confirmatory of what we have said in this case. We dismiss the case, the court not having jurisdiction of the appeal.
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60.US.162
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To be seaworthy as respects cargo, the hull of a vessel must be so tight, stanch, and strofig, as to resist the ordinary action of the sea during the voyage, without damage or loss of cargo. .A jettison, rendered necessary by a peril of the sea, is a loss by such peril within the meaning of the exception contained in bills of lading-aliter, if unseaworthiness of the vessel caused or contributed to the necessity for the jettison. The owner of cargo jettisoned has a maritime lien on the vessel for the contributory share due from the vessel on an adjustment of the general average, which lien may be enforced by a proceeding in rem in the admiralty. Where the libel alleged a shipment of cargo under a bill of lading, and its non-delivery, and prayed process against the vessel, and the answer set up a jettison " rendered necessary by a peril of the sea, and this defensive allegation was sustained by the court, it was held that the libellant was entitled to a decree for the contributory share of general average due from the vessel. 'There are no technical rules of variance or departure in pleading in the admiralty.
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This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Louisiana. The libel alleges that the appellants shipped on board the brig Ann Elizabeth, at Wilmington, in the State of Delaware, a large quantity of gunpowder, to be carried to New Orleans, in the State of Louisiana; and that, on the shipment thereof, bills of lading, in the usual form, were signed by the master of the brig; that, according to the invoices of the merchandise specified in the bills of lading, its value was $7,233.75; that, on the arrival of the brig at New Orleans, the libellants required the delivery of the merchandise thus shipped, but they received only a part thereof; and that the part not delivered consisted of 1,646 packages, which, according to the same invoice valuation, amounted to the sum of $5,936.54. The libel further alleges that no part of that sum has been paid to the libellants; and it prays process against the brig, and a decree for the damages thus demanded, and for such other relief as shall to law and justice appertain. The master of the brig, intervening for his own interest and that of his part-owners, admits that the shipment of goods was made, as alleged in the libel; but propounds that, in the course of the voyage, it became necessary, for the safety of all concerned, through the perils and dangers of the seas, to make a jettison of that part of the libellant's goods which were shipped and not delivered. The first question is, whether the claimant has shown, in support of his defensive allegation, that the jettison was occasioned by a peril of the sea. If it was, then the carrier is exonerated from the delivery of the merchandise, and has only to respond for that part of its value which is his just contributory share towards indemnity for the common loss by the jettison. A jettison, the necessity for which was occasioned solely by a peril of the sea, is a loss by a peril of the sea, and within the exception contained in the bill of lading. But, if the unseaworthiness of the vessel, at the time of sailing on the voyage, caused, or contributed to produce, the necessity for the jettison, the loss is not within the exception of perils of the seas. That there was such a necessity for this jettison as justified the master in making it, we think, is proved. In the case of Lawrence v. Minturn, (17 How., 109,) this court had occasion to consider the extent of the authority of the master to make a jettison. We then held, that 'if he was a competent master; if an emergency actually existed, calling for a decision whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision, with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority.' We find the case at bar is within this rule. We do not detail the evidence, because the authority of the master to make the jettison has not been seriously controverted. This part of the case turns upon the other inquiry, whether the vessel was unseaworthy for the voyage when it was begun. It is the hull of the vessel which is alleged to have been unseaworthy. To constitute seaworthiness of the hull of a vessel in respect to cargo, the hull must be so tight, stanch, and strong, as to be competent to resist all ordinary action of the sea, and to prosecute and complete the voyage without damage to the cargo under deck. If a vessel, during the voyage, has leaked so much as to injure the cargo, or render a jettison of it necessary, one mode of testing seaworthiness is, to ascertain what defects, occasioning leakage, were found in the vessel at the end of the voyage; and then to inquire which of those defects are attributable to perils of the seas, encountered during the voyage, and which, if any, existed when it was begun; and, if any of the latter be found, the remaining inquiry is, whether they were such as to render the vessel incompetent to resist the ordinary attacks of the sea, in the course of the particular voyage, without damage or loss of cargo. This vessel, on her arrival at New Orleans, was taken into dock, and examined. She was found to be a new vessel, and that she had been strained. A but, about midships, at or near the third or fourth streak, was started. The hood-ends forward were also strained, and, on trial, it was found they would take about a thread of oakum. Two worm-holes were also found in her bow, about three-eighths of an inch in diameter—one about three streaks from the keel, the other a little higher up. As the vessel was new, there seems to be no doubt these holes were in the plank when put on the vessel, but from some cause remained undiscovered. The vessel sailed from Wilmington on the afternoon of the 21st of December, 1852. The wind being northeast and strong, the vessel came to anchor at Reedy Island, and on the 22d proceeded to sea. The master, being a part-owner and claimant, has not been examined. The first officer appears to have died before the proofs were taken in the Circuit Court. No account is given of the second officer or the crew, except one seaman, who, together with two passengers, have been examined on the part of the claimants, to prove the occurrences of the voyage. It would have been more satisfactory to have had the evidence of one or more officers of the vessel, and especially of the mate, with his log-book. Still, these three witnesses do satisfactorily show, that on the night of the 23d of December, the brig encountered a strong gale and heavy seas, causing her to labor and strain badly. This weather continued, and the sea became more heavy, up to the night of the 27th. Until about 8 o'clock that night, it was not known the vessel was leaking; but, on sounding the pumps at that time, it was found that the vessel had two feet of water in the hold. The pumps were manned and kept going, but the leak increased two feet in about two hours. The jettison was then made, and the vessel so far relieved that the pumps could control the leak, and the vessel, with the residue of the cargo, arrived at New Orleans. It is manifest that the vessel encountered extraordinary action of the sea; and, as the vessel appears to have been new, and generally stanch and well fastened, the defects found at New Orleans, except the worm-holes, are fairly attributable to this cause. The starting of a but, and the opening of the hood-ends of a new vessel of ordinary strength, indicate a very uncommon degree of strain; and such defects would alone account for the amount of leakage of a vessel heavily laden, and exposed to such a sea as is described. We do not think the existence of the worm-holes amount to unseaworthiness. Any leak which might have been occasioned by them in any ordinary sea, does not appear to have been such as the pumps could not control, without damage to the cargo. All vessels have leaks; and, independent of the strains received from the violent action of the sea, we are not satisfied this vessel would have leaked so much that the pumps could not have controlled the water in her hold, and prevented its doing damage to the cargo. We find, therefore, that the vessel is exonerated from the claim for the full value of the merchandise; and the remaining question is, whether the vessel is chargeable with any part of the value of the merchandise in this cause. When a lawful jettison of cargo is made, and the vessel and its remaining cargo are thereby relieved from the impending peril, and ultimately arrive in the port of destination, though the shipper has not a lien on the vessel for the value of his merchandise jettisoned, he has a lien for that part of its value which the vessel and its freight are bound to contribute towards his indemnity for the sacrifice which has been made for the common benefit. And this lien on the vessel is a maritime lien, operating by the maritime law as a hypothecation of the vessel, and capable of being enforced by proceedings in rem. The right of the shipper to resort to the vessel for claims growing directly out of his contract of affreightment, has very long existed in the genera maritime law. It is found asserted in a variety of forms in the Consulado, the most ancient and important of all the old codes of sea laws, (see chaps. 63, 106, 227, 254, 259;) and the maxim that the ship is bound to the merchandise, and the merchandise to the ship, for the performance of the obligations created by the contract of affreightment, is a settled rule of our maritime law. (The Schooner Freeman, 18 How., 182; The Ship Packet, 3 Mason, 261; The Volunteer, 1 Sum., 550; The Reeside, 2 Sum., 467; The Rebecca, Ware's R., 188; The Phoebe, Ib., 263; The Waldo, Davies's R., 161; The Gold Hunter, 1 Blatch. and How., 305.) Pothier declares (Treatise of Charter-parties, preliminary chapter on Average) that the right to contribution in general average is dependent on the contract of affreightment, which embraces in effect an undertaking, that if the goods of the shipper are damaged for the common benefit, he shall receive a due indemnity by contribution from the owners of the ship, and of other merchandise benefited by the sacrifice. The power and duty of the master to retain and cause a judicial sale of the merchandise saved, has also been long established. (Consulado del Mare, ch. 51, 52, 53, and note 1 in vol. 3, p. 103 of Pardessus's Collection; Laws of Oleron, art. 9; Ord. de la Marine, Liv. 3, tit. 8, sec. 21, 25; Nesbit on Ins., 135; Strong v. New York Firemen's Insurance Company, 11 John. R., 323; Simonds v. White, 2 B. and C., 805; Loring v. The Neptune Insurance Company, 20 Pick., 411; 3 Kent. Com., 243, 244.) And this right to enforce a judicial sale, through what we term a lien in rem, is not confined to the merchandise, but extends to the vessel. Emerigon, (ch. 12, sec. 43,) speaking generally of an action of contribution, says it is in its nature a real action. Cassaregis, (dis. 45, N. 34,) 'est in rem scripta.' It would be extraordinary if the right to a lien were not reciprocal; if it existed in favor of the vessel, when sacrifice was made of part or the whole of its value, for preservation of the cargo, and not against the vessel, when sacrifice was made of the cargo for preservation of the vessel. By the ancient admiralty law, the master could bind both the ship and cargo by an express hypothecation, to obtain a ransom on capture. So he could, and still may, when the whole enterprise has fallen into distress, which could not otherwise be relieved, hypothecate both the vessel and cargo to obtain means of relief. These are cases of express hypothecation made by the master, under the authority conferred on him by the maritime law; but he can also sell a part of the cargo to enable him to prosecute his voyage, or deliver a part of it in payment of ransom of his vessel, and the residue of the cargo, on capture; and when he does so, the law of the sea creates a lien on the vessel, as security for the reimbursement of the loss of the shipper whose goods have been sacrificed. (The Packet, 3 Mason, 255; Pope v. Nickerson, 3 Story's R., 492; The Gold Hunter, 1 Blatch. and How., 300; The Boston, Ib., 309; Consol. del Mare, ch. 105; Laws of Oleron, art. 25; Ord. of Antwerp, art. 19; Emerigon Con. a la Grosse, ch. 4, secs. 9, 11.) The authority to make a jettison of cargo is derived from the same source; an instant necessity, incapable of being provided for save by a sacrifice of part of what is committed to the master's care, and the presumed consent of the owners of all the subjects at risk, that the loss shall become a charge upon what is benefited by the sacrifice. (The Gratitudine, 3 Rob., 210.) If the sacrifice be made to enable the vessel to perform the voyage, by paying what the owners are bound to pay to complete it, the charge is on the vessel and its owners. If it be made to relieve the adventure from a peril which has fallen on all the subjects engaged in it, the risk of which peril was not assumed by the carrier, the charge is to be borne proportionably by all the interests, and there is a lien on each to the extent of its just contributory obligation. This authority of the master to make the sacrifice, and this consent of the owners of the subjects at risk to have it made, and their implied undertaking to contribute towards the loss, are viewed by the admiralty law as sufficient to create an hypothecation of the subjects benefited, for the security of the payment of the several sums for which those subjects are respectively liable. In other words, as the master is authorized to relieve the adventurer from distress, by means of an express hypothecation, in case of capture or distress in port, or by means of a sale of part of the cargo, thereby creating a maritime lien on the property ultimately benefited, in favor of the owner of what is sold or hypothecated; so he may also, in a case of necessity at sea, make a jettison of cargo, and thereby create a lien on the property thus saved from peril. Pothier (Con. Mar., n., 34, 72) and Emerigon (Con. a la Grosse, ch. 4, sec. 9) say that the sale of part of the cargo in port, to supply the necessities of the ship, is a kind of forced loan. Though the sacrifice of part of the cargo at sea cannot be considered a loan, it is a forced appropriation of it to the general benefit of those engaged in a common adventure, under a contract of affreightment; and such use of the property of one, for the benefit of others, creates a charge on what was thus saved, for what may fairly be termed the price of that safety. (Abbott on Shipping, part 4, ch. 10, s. 6.) In United States v. Wilder, (3 Sumner, 311,) which was a case of general average, Mr. Justice Story likens it to a case of salvage, where safety is obtained by sacrifices of labor and danger, made for the common benefit; and he says the general maritime law gives a lien in rem for the contribution, not as the only remedy, but as in many cases the best remedy, and in some cases the only remedy. In the District and Circuit Courts of the United States, this jurisdiction has been exercised, and some cases of this kind are found in the books, though most of their decisions are not in print. (The Mary, 5 Law Reporter, 75; 6 Ib., 73; The Cargo of the George, 8 Law Reporter, 361; Sparks v. Kittredge, 9 Law Reporter, 349; Dunlap's Ad. Pr., 57; 2 Browne's Civ. and Ad. Law, 122; The Packet; The Gold Hunter; The Boston, above cited.) The restricted admiralty jurisdiction in England seems insufficient to enforce this lien. (The Constantia, 2 W. Rob., 487.) Nor is there anything in the case of Rae v. Cutler, decided by this court in 1849, and reported in 7 How., 729, which conflicts with the view we have now taken. That was a libel by the owner of a vessel against the consignee of cargo, to recover the contributory share of the average due from the goods which the master had voluntarily delivered to the respondent before the libel was filed. The court decided, that though the master, as the agent of the owner of the vessel in that case, had by the maritime law a lien upon the goods, as security for the payment of their just contribution, this lien was lost by their voluntary delivery to the consignee; and that the implied promise to contribute could not be enforced by an action in personam against the consignee, in the admiralty. This admits the existence of a lien, arising out of the admiralty law, but puts it on the same footing as a maritime lien on cargo for the price of its transportation; which, as is well known, is waived by an authorized delivery without insisting on payment. On full consideration, we are of opinion that when cargo is lawfully jettisoned, its owner has, by the maritime law, a lien on the vessel for its contributary share of the general average compensation; and that the owner of the cargo may enforce payment thereof by a proper proceeding in rem against the vessel, and against the residue of the cargo, if it has not been delivered. The remaining question is, whether the pleadings in this case are in such form as to present this claim for the consideration of this court, and entitle the libellant to assert a lien on the vessel for its contribution. The rules of pleading in the admiralty are exceedingly simple and free from technical requirements. It is incumbent on the libellant to propound with distinctness the substantive facts on which he relies; to pray, either specially or generally, for the relief appropriate to them; and to ask for such process of the court as is suited to the action, whether in rem or in personam. It is incumbent on the respondent to answer distinctly each substantive fact alleged in the libel, either admitting or denying, or declaring his ignorance thereof, and to allege such other facts as he relies upon as a defence, either in part or in whole, to the case made by the libel. The proofs of each party must correspond substantially with his allegations, so as to prevent surprise. But there are no technical rules of variance, or departure in pleading, like those in the common law, nor is the court precluded from granting the relief appropriate to the case appearing on the record, and prayed for by the libel, because that entire case is not distinctly stated in the libel. Thus, in cases of collision, it frequently occurs that the libel alleges fault of the claimant's vessel; the answer denies it, and alleges fault of the libellant's vessel. The court finds, on the proofs, that both were in fault, and apportions the damages. Looking to this libel, we find it states that a contract of affreightment was made to transport these goods from Wilmington to New Orleans, on board this brig; that the goods were laden on board, and the brig had arrived, but only a part of the goods have been delivered. It states the value of the part not delivered, avers that the libellants have not been paid any part of that sum, prays for process against the brig, and a decree for the value of the merchandise not delivered, and also for such other relief as to law and justice may appertain. The answer admits all the facts stated in the libel, but sets up, by way of defensive allegation, a necessary jettison of that part of the cargo not delivered. It is manifest, that though this answers, in part, the claim for damages made by the libel, it does not wholly answer it. It shows sufficient cause why the libellant should not assert a lien on the brig for the whole value of his merchandise, but at the same time shows that the libellant has a valid lien on the brig for that part of the value of the merchandise which the vessel is bound to contribute. While it asserts that the performance of the contract of affreightment by transportation of the merchandise to New Orleans was excused by a peril of the sea, it admits that an obligation arose out of the relations of the parties created by that contract of affreightment, and out of the facts relied on as an excuse for not transporting the merchandise; that this obligation was to pay to the shipper a part of the value of his goods; that it was the duty of the master, at the port of New Orleans, to ascertain what part of that value the vessel was bound to contribute, and that there is a lien on the vessel to secure its payment. If the technical rules of common-law pleading existed in the admiralty, there might be difficulty in admitting a claim for general average, in an action founded on a contract of affreightment; because, though the claim for such average grows out of the contract of affreightment, the implied promise to pay it is technically different from the promise on the face of a bill of lading. In the case of Pope v. Nickerson, (3 Story, 465,) Mr. Justice Story went into a very extensive examination of such claims, under an agreed statement of facts, in an action of assumpsit on bills of lading; and it does not seem to have occurred, either to him or the counsel, that it was inconsistent with any substantial rule of the common law so to do. But in the admiralty, as we have said, there are no technical rules of variance or departure. The court decrees upon the whole matter before it, taking care to prevent surprise, by not allowing either party to offer proof touching any substantive fact not alleged or denied by him. But where, as in this case, the defensive allegation of the respondent makes a complete case for the libellant, so that no evidence in support of it is required, and where that case is within the form of action and the prayer of relief, and the process used by the libellant, we think it not a sufficient reason for refusing relief, that the precise case on which the court think fit to grant it is not set out in the libel. We understand, that in the court below the libellants relied on the duty of the master to adjust and collect, and pay to them, the general average contributions, as precluding the defence of a necessary jettison. We think this defence was properly overruled. The libellants did not there insist on their lien on the vessel for its contribution. We do not consider their failure to do so precludes them from calling on this court to make that decree, to which the record shows they are entitled. In Finlay v. Lynn, (6 Cranch, 238,) this court was of opinion that the appellant, whose bill was dismissed by the Circuit Court, was entitled to an account, on a ground not assumed in the Circuit Court. This court said: 'The plaintiff probably did not apply for this account in the court below, and it does not appear to have been a principal object of his bill. This court therefore doubted whether it would be most proper to affirm the decree dismissing the bill, with the addition that it should be without prejudice to any future claim for profits, and for the debt due from one store to the other, or to open the decree and direct the account. The latter is deemed the more equitable course. The decree, therefore, is to be reversed, and the cause remanded, with directions to take an account of the profits of the jewelry store, if the same shall be demanded by the plaintiff.' But, as the libellants failed to call the attention of the Circuit Court to this view of their rights, and placed their claim there solely on the grounds that the jettison was unlawful, or, if lawful, could not be a defence, because the master had failed to do the duty incumbent on him in a case of general average, we think the decree should be reversed, without costs. The cause must be remanded to the Circuit Court, with directions to ascertain the amount of the lien of the libellants on the Ann Elizabeth, for the share to be contributed by the vessel towards the loss sustained by the libellants, and to enter a decree accordingly. Mr. Justice CATRON and Mr. Justice CAMPBELL dissented.
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60.US.8
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Where there appears to be an omission in the record of an important paper, which may be necessary for a correct decision of the case of the defendant in error, who has no counsel in court, the court will, of its own motion, order the case to be continued and a certiorari to be issued to bring up the missing paper.
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Upon examining the transcript of the record filed in this case, we find that it is imperfect, and that a paper has been omitted which may be important to the decision of the matter in controversy between the parties. The bill of exceptions upon which the cause is brought before this court, after stating that the defendants read in evidence the deed from Bogardas, to Underhill, under which they claim title, proceeds in the following words: 'The defendants next offered in evidence to the jury a certificate of the register of the land office at Quincy, dated _____, which is in the words and figures following, to wit.' But the certificate thus referred to is not inserted in the exception, nor its contents stated in any part of the transcript. And as this paper was offered in evidence by the defendants, it must have been deemed material to their defence; and the court think it would not be just to them to proceed to final judgment, without having this paper before us. And as the defendants have no counsel appearing in their behalf in this court, the court of its own motion order the case to be continued, and a certiorari issued in the usual form to the Circuit Court, directing it to supply the omission above mentioned, and return a full and correct transcript to this court, on or before the first day of the next term. Upon an inspection of the record of this cause, it appearing to the court here that the bill of exceptions states that 'the defendants offered in evidence to the jury a certificate of the register of the land office at Quincy, dated _____, which is in the words and figures following, to wit;' and that the said certificate, thus referred to, is not inserted in the exception, nor its contents stated in any part of the transcript, on consideration whereof, it is now here ordered by this court, that a writ of certiorari be and the same is hereby awarded, to be issued forthwith, and to be directed to the judges of the Circuit Court of the United States for the district of Illinois, commanding them to supply the omission above mentioned, and return a full and correct transcript to this court, with this writ, on or before the first day of the next term of this court.
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60.US.224
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Where a railroad company became embarrassed, and were unable to pay the contractor, and a person interested in the company agreed to give the contractor his individual promissory notes if he would finish the work by a certain day, the contractor cannot recover upon the notes, unless he finishes the work within the stipulated time.
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THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Massachusetts. The facts are stated in the opinion of the court. It was argued by Mr. Bates and Mr. Bartlett for the plaintiff in error, and by Mr. Hutchins upon a brief filed by himself and Mr. Choate for the defendant. The following points on behalf of the plaintiff in error are taken from the brief of Mr. Bartlett, as being more condensed than those stated in the brief of Mr. Bates: I. The single question is, whether by the true and rational construction of the contract it was agreed and understood between the parties that the doing the work within the time prescribed was a condition on which the obligation of plaintiff to give his notes was to depend. a. It is not sufficient to say that the parties, if such was their intent, might have expressed it so in terms, or might have secured damages for non-performance by an independent covenant. The books abound in cases where parties having inartificially expressed their purpose, the court have construed their agreement to be dependent. This want of express terms, therefore, though it may possibly lead in doubtful cases to a presnmption, is of value solely in that contingency. b. We are to find, then, either from the reason of the thing, looking at the position of the parties and the surrounding circumstances, or by the application of the settled rules of construction, or by both, what was the intent of the parties; and, 1. The position of the parties is new and unusual. It is believed that a similar case is not to be found in the books. Usually the controversy is between a party contracting to perform and a party who is to enjoy the benefit of the thing to be performed. Here the question is upon the construction of a contract collateral to another, between other parties, which may be called the principal contract; and the entire direct fruits of performance are to be enjoyed by one of those other parties. 2. The extrinsic evidence shows that at the time of making the contract in question another negotiation was, with the knowledge of all parties, pending between one of the parties to the principal contract and a third party, of great pecuniary importance, the consummation of which was entirely dependent on the ability of one of the parties to open its road at a fixed time. That fixed time was the precise period prescribed for the completion of the work by the contract in question. (Ammidown's Testimony.) 3. Such are the surrounding circumstances, and before examining the terms of the contract and the settled rules of construction, it may be fairly asked whether defendent in error, who was already performing and bound to perform the work under another contract for the same remuneration, would be likely to agree that the covenant of plaintiff in error should be dependent, and this, too, when the notes to be given him were not to pay for the labor to be performed under the contract, but to an existing indebtedness of railroad to defendant in error. (Willis's Testimony.) And also whether plaintiff in error would be likely to make any other than a dependent agreement to pay on condition an old debt of a third party. II. With these preliminary views, we proceed to examine the terms of the contract, and the usual rules of construction. a. The terms of agreement by defendant in error are, 'that he will complete all the bridge work to be done by him for the Boston and New York Central railroad, ready for laying down the iron rails for one track, on the first day of December next. b. The agreement on the part of the plaintiff in error is, 'that, in consideration of the premises, he will pay, within two days from the date hereof, the sum of $4,400 in cash; and that he will give said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, his five notes for $2,000 each, payable in six months; said notes, when paid, to be applied toward the indebtedness of said Railroad Company to said Emerson.' 1. The agreement on the part of plaintiff is 'in consideration of the premises,' and technically these are apt words to create a condition. (Thorpe v. Thorpe, 1 Ld. Raymond, 665; Ackerly v. Vernon, Willes, 157.) 2. That the agreement to give the notes was at least dependent upon prior performance, would seem free from all doubt. This is tested by considering whether an action on the contract could have been maintained before the work was done. It falls clearly in this respect within the technical rule. 'When a day is appointed for the payment of money, &c., and the day is to happen after the thing which is the consideration of the money, &c., is to be performed,' no action can lie. (Bean v. Atwater, 4 Connecticut, 9; Pordage v. Cole, 1 Saunders, 320; Day v. Dox, 9 Wendell, 129.) The fact that the notes were not to be given upon performance, but at a period after performance, does not affect it. This only shows that it does not belong to another class of dependent agreements, viz: Where two acts are to be done at the same time, or cases of concurrent covenants, as they are called. (Glazebrook v. Woodrow, 8 T. R., 374; Williams v. Healy, 3 Denio, 363; Gainzly v. Price, 16 Johnson, 267.) 3. Nor does the fact that payment of part of the consideration (viz: the $4,400) was to be made before performance, affect the question whether the agreement for a final payment was dependent or independent. The old case of Terry v. Duntzie, (2 Henry Blackstone, 389,) from which the opposite doctrine was derived, was unfounded in reason, and has been declared not to be law here and in England. (Cunningham v. Morrell, 10 Johnson, 203; Hopkins v. Elliot, 5 Wendell, 496; Grant v. Johnson, 1 Selden, 247; Johnson v. Reed, 9 Mass., 78; Lord v. Belknap, 1 Cushing, 279; Watchman v. Crooke, 5 Gill and Johnson, 254; Bean v. Atwater, 4 Connecticut, 4; Kettle v. Harvey, 21 Vermont, 301; McClure v. Rush, 9 Dana, 64.) 4. But it may be said, that although performance was a condition precedent to delivery by plaintiff of his notes, yet performance within the time was not so. a. It is important on this point to distinguish between the question whether non-performance within the time will, because of the agreement being dependent, defeat a recovery or the contract itself, and the question whether, notwithstanding such non-performance, assumpsit will not lie to recover for the labor and materials. b. It would seem to be the settled rule, both here and in England, that if plaintiff has not performed the work in exact accordance with the contract, and there has been no waiver, he cannot recover on the contract, but must recover, if at all, on the common counts for his labor and materials. (2 Greenleaf's Evidence, secs. 104, 136; Chapel v. Hicks, 2 Crompt and Mee, 214; Read v. Banner, 10 B. and C., 440; Alexander v. Gardner, 10 Bingham N. C., 671; Chater v. Leese, 4 M. and W., 295, 311; Jewell v. Schroepel, 4 Cowen, 564; Ladua v. Seymour, 24 Wendell, 62; Britton v. Turner, 6 N. H., 481.) c. Unless, therefore, time of performance might, in a declaration on the contract, be wholly omitted, this case falls within the rule, and plaintiff would be remitted to his common counts; that it could not be so omitted, plaintiff in error refers to Phillips v. Rose, 8 Johnson, 393; Jewell v. Schroepel, 4 Cowen, 565; Smith v. Guyarty, 4 Barbour, 615; Ladua v. Seymour, 24 Wendell, 61; Gregory v. Hincks, 3 Hill, 380; Watchman v. Crooke, 5 Gill and Johnson, 254; Farnham v. Ross, 2 Hall, 167. d. As to to the right of defendant in error to recover on common counts, no discussion is necessary. The ruling excepted to declares the agreements to be independent, and that recovery may be, and it was in fact, had upon the counts on the special contract. III. But, besides and beyond the artificial rules above adverted to, and under which it is submitted plaintiff in error is safe, there are others, founded on the plainest principles of equity and justice, which have guided, if not controlled, the courts, in their construction of this class of contracts; and it is upon these and their application that the case must turn. Of these, the principal ones are—— 1. Where non-performance by plaintiff deprives the defendant, not of part, but of the entire consideration of the contract, the agreement of defendant shall be deemed dependent. (Pordage v. Cole, 1 Wms. Saunders, 320; Duke St. Albans v. Shore, 1 H. Black, 270; Dakin v. Williams, 11 Wendell, 67; Atkinson v. Smith, 14 M. and W., 695.) 2. Where defendant, in case of plaintiff's non-performance, has no other remedy for the injury he sustains except by declaring his agreement dependent. (Pordage v. Cole, 1 Wms. Saunders, 319.) 3. Where the amount of the consideration which defendant will be absolved from paying plaintiff, if his agreement be deemed dependent, is not, or may not be, commensurate with the injury sustained by plaintiff, or, in the language of this court, there 'is no natural connection' between the two; in such case, defendant's contract shall be construed to be independent. In discussing the application of these principles, plaintiff in error submits at the outset, that almost all the rules of construction in this class of cases are founded upon a struggle of the courts to avoid the old and long-standing doctrines of forfeiture. Thus the rule, that in case of failure to perform, when such failure deprives defendant only of part of the consideration to be received by him, the agreement shall be deemed independent, is founded solely on the ground of forfeiture, and the want of equity in allowing defendant to keep and enjoy the labor and materials of the plaintiff without compensation. So, also, the doctrine, that there is no natural connection between the sum due plaintiff at the time of breach, and the injury sustained by defendant by such breach, proceeds wholly on the thought that the sum so due is forfeited by the breach. But in the class of cases to which the present one belongs, the doctrine of forfeiture is exploded, and it is well settled that the value of the labor and materials to defendant may be recovered on quantum meruit notwithstanding the breach. The reason of the rule having therefore ceased, the doctrine will bear revision. a. As to the first of the above rules, plaintiff in error submits that the failure to perform by defendant, although it left the fruits of his labor in the hands of the railroad, with whom he contracted to do it, and who are fully bound to pay him for it, yet deprived plaintiff in error of the whole consideration for which he made the contract, viz: the time within which performance was to take place. b. It is important to note that the doctrine regards merely the question of consideration moving from plaintiff to defendant, not the consideration arising from plaintiff's altered condition in consequence of the contract. It seeks to avoid circuity of action which would arise if plaintiff recovered the agreed sum, and defendant, by cross action, recovered it back. (Duke of St. Albans v. Shore, 1 H. Black., 270; Pordage v. Cole, 1 Wms. Saunders, 319; Dakin v. Williams, 11 Wendell, 67; Atkinson v. Smith, 14 M. and W., 65.)1. The necessity for making time a condition of the contract, and the probability that both parties would assent to make it so, have been adverted to, and plaintiff in error now submits, that unless time was the whole consideration, moving from defendant in error to plaintiff in error, there was no consideration at all. a. For there was already a contract between the defendant in error and the railroad (subsisting and referred to as obligatory in this very contract) to do this same work, the terms of which were not varied one word, except in relation to this very matter of time. The matter of time, then, was the only change effected, and the only benefit derived to plaintiff in error. b. If both contracts had been made by plaintiff with the railroad, would there have been any other consideration to support the additional contract except time? c. It cannot be said that the work was done for the plaintiff, or at his request, or for his benefit, so as to form a consideration moving from the defendant in error to him—for it was to be performed, so far only as time was concerned, at his request, and its direct benefit was solely to the railroad. His relation to the railroad was merely that of an officer, a creditor, and a stockholder; and it is believed that upon no known principles of law could damages be ascertained and assessed in his favor, for a deprivation of such a remote benefit, if defendant in error had failed to perform. 2. This last suggestion, if well founded, emphatically supports the second of the above grounds, viz: that the only remedy plaintiff in error can have for the breach of his agreement by defendant, is to construe his covenant to give his notes to be dependent on complete performance by defendant. 3. The last ground which is often relied on to show the covenants to be independent is, that there is no natural connection between the sum which is claimed to be paid defendant in error and which plaintiff seeks to withhold, and the amount of damages which plaintiff may sustain by defendant's non-performance. a. If plaintiff in error had in fact received and was now enjoying the results of defendant's labor and materials, and if non-performance would leave defendant in error without remedy, this would be a forcible reason for holding the covenant of plaintiff in error to be independent. b. But even in such case, as it is settled that no forfeiture is incurred, but defendant might, as against party enjoying the benefit of his labor and materials, maintain an action for his quantum meruit in which the injury by non-performance might be set off and adjusted, it is submitted that the harmony of the law and the symmetry of pleading, which requires in actions on special contracts an allegation of complete performance, would be best preserved by obliging the party to resort to the common counts. c. But, however this may be in other cases, in this case plaintiff in error does not hold and enjoy the benefit of defendant's labor and materials, but a third party, who has contracted with defendant to pay for them. The defendant is not without remedy against that party, and there may be said to be a natural connection between the amount which defendant in error loses, which is nothing, and the damage which plaintiff in error could recover for breach, which by law cannot, by reason of remoteness, be shown to be anything. In other words, the rule and its reason has no application to a collateral contract, in its nature a guaranty, when, for want of strict performance of the terms of the guaranty, one party has lost his remedy, and the other received no appreciable benefit. IV. The remaining exception is to the ruling of the court, compelling plaintiff in error to prove and adjust his damages for breach of the contract by way of offset, recoupment, or reduction of damages of defendant in error in this action, and thus depriving him of his election to bring a cross action. Plaintiff in error has been able to find no case in which the doctrine is established, that it is compulsory on a defendant to come prepared with his proofs of such damage, or have the damages assessed at a nominal sum, and be barred of his cross action. The question may be important in this case, the principle is fit to be settled, and plaintiff in error submits that the ruling was wrong. V. The statement of counsel to Emerson should have been admitted to show that, in opinion of Emerson, the work could have been done by December 1st. I. The first exception is as follows: 'The defendant offers to prove, that just prior to the signature of the contract, both parties being present, the counsel of the plaintiff told him that, unless he was sure that he could complete the bridges by December first, he ought not to sign the contract, and could not recover if he did not complete them by December first; but the court refused to admit the same.' To which refusal the defendant excepted. Such testimony was clearly inadmissible. The contract must speak for itself. The conversations of the parties, their understandings and expectations, and the suggestions of counsel, cannot affect or control the construction of this contract. This would be to vary or modify its terms by parol. (1 Greenleaf on Evidence, sec. 275, p. 327; Weatherhead's Lessee v. Baskerville, 11 Howard; Van Buren v. Digges, 11 Howard, 461; Grant v. Naylor, 4 Cranch, 224.) II. The second exception is as follows: 'The defendant offers to prove that, at the time the contract was drawn up, the element of time was talked over by the plaintiff and the defendant, and that plaintiff assented that time was the essence of the contract; but the court refused to admit the same.' To which refusal the defendant excepted. The same answer may be made to this as to the first exception. When the contract is reduced to writing, all the conversations of the parties, leading up to it, are merged in it. (1 Greenleaf on Evidence, sec. 275, p. 327.) III. The third exception is as follows: 'The defendant moved the court to rule and instruct the jury, that by the true construction of said contract declared upon, the plaintiff would not be entitled to recover, without showing that the work was completed, ready for laying down the rails for one track, by the first day of December, 1854; but the court refused so to instruct the jury, but did instruct them, that the agreement on the part of the defendant, to give the notes in said agreement mentioned, was not dependent upon the completion of said work, ready for laying down said rails for one track, at the time limited by said contract.' To which ruling the defendant excepted. It is sometimes difficult to determine whether covenants and promises are dependent or independent. Some rules of construction are laid down in the books, but, after all, each case is to be governed by its own circumstances. (Philadelphia W. and B. R. R. Co. v. Howard, 13 Howard, 307.) 1. The courts incline to consider covenants and promises independent, rather than dependent, to save forfeitures. The burden is on him who alleges dependency. (Platt on Covenants, p. 35, [78, 79,] Law Library, vol. 3.) If there are no terms which import a condition, or which expressly make one promise dependent on the other, they are construed to be independent; and in this contract there are no such. Platt on Covenants, Law Lib., vol. 3, p. 32, [72, 73.] More than this the terms import the contrary. In that part containing the promise, the condition of time is wholly omitted thus indicating an intention not to make it dependent on time, but on work done. 2. The failure to perform on the day does not go to the whole consideration, and there is no natural connection between the amount to be paid for the work done after the day, and the injury or loss inflicted by a failure to perform on the day. (Platt on Covenants, Law Lib., vol. 3, p. 40, [90, 94;] Philadelphia W. and B. R. R. Co. v. Howard, 13 Howard.) 3. The forfeiture of the amount to be paid for the whole work, in consequence of its not being completed by the day, would be unreasonable in this case. By construing the promises as independent, the plaintiff can recover his exact damages (if any) or have them recouped. Thus the rights of both parties are secured. Platt on Covenants, vol. 3, Law Lib., p. 40, [90.] 4. The defendant in error completed the bridges. The plaintiff in error has had the benefit of his labor. The objection is, that it was not done at the day, (for which, however, the plaintiff in error claimed no damages.) It would be manifestly inequitable for the plaintiff in error to receive the benefit of this labor without paying for it. The objection taken is technical, and ought not to be sustained, unless the language is clear, and the rule of law imperative. (Philadelphia v. W. and B. R. R. Co., 13 Howard, 307; Van Buren v. Digges, 11 Howard, 461.) 5. The promise of the plaintiff in error was not dependent upon the completion of the bridge work by December 1st, because the notes were not to be given upon the completion of the bridges. Something more was to be done, to wit, the laying of the rails by another party. How can the promise of the plaintiff in error be said to be dependent upon the completion of his work by December 1st, when the completion of the work at that time would not then entitle the defendant in error to his notes? 6. When the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as independent of each other. (Goldsborough v. Orr, 8 Wheaton, 217.) Taking this decision as a guide, these promises must be construed as independent; for the promise of the defendant in error was to complete the bridges by December 1st, whereas the promise of the plaintiff in error was not to give the notes at that time, but when the rails were laid. 7. The plaintiff in error promised to pay the defendant in error $4,400 in cash, within two days from the date of the contract, and to give his notes upon the completion of the bridges and laying the rails. So far as this cash payment is concerned, the promise is clearly independent, as it necessarily preceded the completion of the work. If the construction contended for by the plaintiff in error be adopted, the same promise will be construed both as dependent and independent—dependent as to the giving the notes, independent as to the payment of cash. Platt on Covenents, Law Library, vol. 3, p. 43, [96.] IV. The fourth exception is as follows: 'The defendant further requested the court to rule and to instruct the jury, that if the plaintiff failed to complete said work, ready for laying down the iron rails for one track, by the said first day of December, there was thereby a failure of the consideration of said contract, and the plaintiff would not be entitled to recover the amount claimed by him, or any part thereof; but the court refused so to instruct the jury.' To which refusal the defendant excepted. Very clearly, these instructions ought not to have been given. The consideration of the plaintiff in error's promise to pay the money and to give the notes, was the promise of the defendant in error to do the work, and not merely his promise to do it by December 1st. He having completed the work to their acceptance, there was clearly not a total failure of consideration. V. The last exception is as follows: 'His honor the judge having first called upon the defendant to offer evidence, if he saw fit, of any actual damage by him sustained by the non-performance of said work within the time limited by said contract, and the defendant declining to offer any such evidence, and admitting that no such actual damage was claimed by him in this suit, the court thereupon instructed the jury to deduct from any sum they might find for the plaintiff the sum of one dollar, as nominal damages for the said non-performance of plaintiff.' To which direction the defendant excepted. It is difficult to discover what there is objectionable in this direction. Undoubtedly, the plaintiff in error was entitled to have deducted in this suit any damage which he could show that he had sustained from the non-performance of the work within the time limited by the contract; and if the court had refused to admit testimony of such damage, he might well have excepted; but he expressly waived all claim to damage in this suit. In the absence of any proof or claim by him, the court directed a deduction of nominal damages. What more or different could the plaintiff in error require? (Winder v. Caldwell, 14 Howard, 434.) Mr. Justice McLEAN delivered the opinion of the court. This case is before us on a writ of error to the Circuit Court of Massachusetts. The action was prought by Emerson against Slater, on an agreement made the 14th day of November, 1854, in which Emerson, 'in consideration of the agreement of said Slater, hereinafter contained, and of one dollar to him paid, covenants and agrees, with said Slater, that he will complete all the bridge work to be done by him for the Boston and New York Central Railroad Company, ready for laying down the iron rails for one track, by the 1st day of December next.' 'And the said Slater, in consideration of the premises, hereby agrees, with said Emerson, that he will pay him, within two days from the date hereof, the sum of forty-four hundred dollars, in cash. And the said Slater further agrees, that he will give to the said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, in Boston, from Dedham, his (said Slater's) five notes, for two thousand dollars each, dated when said notes were given, as above provided, and payable in six months from their date, to the said Emerson or his order. Said notes, when paid, are to be applied towards the indebtedness of said Boston and New York Central Railroad Company to said Emerson; it being understood that this agreement is in no may to affect any contract of said Emerson with said company, or any action now pending.' The execution of this agreement was admitted, and that the work upon the bridges, in said agreement set forth, was completed, ready for laying down the iron rails for one track, about the middle of December, 1854, and that the rails were laid to the foot of Summer street, in Boston, from Dedham, about the last of the same month. It was proved that the defendant was President of the Boston and New York Central Railroad Company, and a stockholder and bondholder in the same. The corporation failed on or about the 2d of July, 1954. The company was then indebted to the plaintiff, and did not pay him. In the second week of July, there was a crisis in the affairs of the company, and Emerson suspended his work, so far as regarded new outlays. In August a new arrangement was made, and he went on till the first or second week in November, and then he kept a force on the great bridges sufficient to retain possession of the work, and would not surrender it; the witness (Willis) then made an effort to get the bridges completed. The question was, how much Emerson would take. The company owed him some ten to fifteen thousand dollars, and was then insolvent as respected meeting its engagements. The defendant then introduced an agreement between the Boston and New York Central Railroad Company, a corporation, and Charles Emerson, of Boston, in which Emerson agreed to build and complete, sufficient for the passage of an engine over the same, on or before the first day of May next, all the bridging as now laid out and determined upon by the engineer of said railroad, from the wharf near the foot of Summer street, in Boston, and from South Boston across the South Bay, so called, to the Dorchester shore, in Dorchester, in the manner and with the materials hereinafter described, and to finally complete the same to the satisfaction of the State commissioner and the engineers of said railroad, as soon after the first day of May next as may be. Several other bridges were required to be built on the road, Emerson furnishing all the materials, excepting the iron rails, chains, and spikes, which were to be furnished by the Railroad Company. This contract was dated the 23d of December, 1853, and signed by the parties. A receipt, dated November 15th, 1854, signed by Emerson, acknowledged the payment of forty-four hundred dollars, by Slater, of the contract first above stated. E. B. Ammidown, a witness, stated he was a director on the railroad, and that in November, 1854, there were negotiations pending for a contract for a through route from Boston to New York, between the Boston and New York Central Railroad Company and the Norwich and Worcester Railroad Company, and the Steamboat Company plying between Norwich and New York. The contract then existing between said Steamboat Company and Norwich and Worcester Railroad Company with the Boston and Worcester Railroad Company would expire about December 1st, 1854. It was necessary that said Steamboat and Norwich and Worcester Railroad Companies should make a new contract. They preferred to contract with us instead of the Boston and Worcester Railroad Company, provided our road could be ready to run by December 1st, 1854. The only part of our road, as to which there was any doubt of its completion, was the bridges, which the plaintiff was making. The whole matter was talked over, in the presence of the plaintiff. We regarded it as of very great importance. I considered the loss of that contract equal to a quarter of a million of dollars, and the plaintiff said half a million. Committees from Norwich and Worcester Railroad and Steamboat Companies came on, to make the arrangement, and went over part of the road. Whether this was before or after the contract the witness cannot say, but he has little doubt that it was before. J. C. Hurd, a witness, and who was also a director, and as a committed, about the 14th of August, 1854, made a parol contract with Emerson to pay him $17,000, and secure to him $6,000 of Farnum, with endorsements. A larger sum than $17,000, he thinks, was paid at the time of the contract. Emerson agreed to go on and finish the work, but he declined to sign a written agreement. On the above evidence, the defendant moved the court to rule and instruct the jury, that by the true construction of said contract declared on, the plaintiff would not be entitled to recover without showing that the work was completed, ready for laying down the iron rails for one track, by the first day of December, 1854; but the court refused so to instruct the jury, and did instruct them that the agreement on the part of the defendant to give the notes in said agreement mentioned was not dependent on the completion of said work, ready for laying down said rails for one tract, at the time limited by said contract. To which ruling and refusal the defendant excepted. And the defendant further requested the court to rule and instruct the jury, that if the plaintiff failed to complete said work, ready for laying down said iron rails for one track, by the said first day of December, there was thereby a failure of the consideration of said contract, and the plaintiff would not be entitled to recover the amount claimed by him, or any part thereof; but the court refused so to instruct the jury. To which refusal the defendant excepted. The judge having first called upon the defendant to offer evidence, if he saw fit, of any actual damage by him sustained by the non-performance of said work within the time limited by said contract; and the defendant declining to offer any such evidence, and admitting that no such damages were claimed by him in the suit, the court thereupon instructed the jury to deduct, from any sum they might find for the plaintiff, the sum of one dollar—as nominal damage, for the said non-performance of plaintiff. To which the defendant excepted. The jury found for the plaintiff ten thousand one hundred and ninety-nine dollars. The declaration contains four counts. The first one alleges the work was completed by the 1st of December, 1854; the second, on the 20th of December; third, the same time; the fourth, the same as the second, with an allegation that the defendant waived the time fixed for the work to be completed to the 20th of December. This contract cannot be satisfactorily understood or construed without reference to the circumstances under which it was made. From the evidence, it appears that the work to be completed by the 1st of December was provided for by a previous contract, dated 17th December, 1851, in which the details and prices of the work were specially stated to be so constructed as to admit of an engine to run over it on or before the 1st of May ensuing, and the whole to be completed as soon after that period as practicable. The company, it seems, had become embarrassed, and were unable to make payment for the work as it progressed; still the contractor, Emerson, was unwilling to give up the contract, and retained a few hands in his employ on different parts of the work, so as to retain the possession of it. Another fact to be noticed as important was, that if the road could be completed by the 1st of December, the company had an assurance that a contract could be made with the Steamboat Company plying between Norwich and New York, making a continuous line between Boston and New York. This was considered an object of great importance—equal, as was supposed by a witness, to a quarter of a million of dollars, and, as the plaintiff supposed, to half a million. The defendant was President of the Boston and New York Central Railroad—a stockholder and a bondholder in the same; but it does not appear that he had any authority to bind the company, as he entered into the contract in his individual capacity. Under these circumstances, the contract on which the action is prosecuted was made. It will be at once perceived there was a strong motive to have the work completed by the 1st of December ensuing, by all who had an interest in the Central railroad. The sum to be paid by Slater was not in addition to the price stipulated in the former contract, but in discharge of so much of that contract. All these facts being admitted or undisputed, we will consider the language of the contract. It states 'that the said Emerson, in consideration of the agreement of said Slater, hereinafter contained, and of one dollar to him paid, the receipt whereof is acknowledged, covenants and agrees with said Slater, that he, the said Emerson, will complete all the bridge work to be done by him for the Boston and Central Railroad Company, ready for laying down the iron rails for one track, by the 1st day of December next.' There is no ambiguity in this language. No one can misconstrue it. The work specified was to be completed by the 1st day of December. And the said Slater, 'in consideration of the premises,' that is, the completion of the work, 'hereby agrees with said Emerson, that he will pay him, within two days from the date hereof, the sum of forty-four hundred dollars in cash; and the said Slater further agrees that he will give to the said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, in Boston, from Dedham, his (said Slater's) five notes for two thousand dollars each, dated when said notes are given, as above provided, and payable in six months.' The notes were to be given on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, in Boston; and from this it is argued that the covenants in the agreement are independent. Much is found in the opinions of courts and elementary writers in regard to dependent and independent covenants. And it is said, 'where the acts stipulated to be done are to be done at different times, the stipulations are to be construed as independent of each other.' This, as a general rule, is correct, but it is subject to the intention of the parties, as signified in the language of the contract. The great rule is to ascertain the intent of the parties from the language used. The work was to be done by the 1st day of December; and Slater agreed to give his notes, payable in six months after the work was completed; the time of giving the notes, therefore, is referable to the time fixed for the completion of the work. In no just or legal sense can this language be held to enlarge the time limited in the contract. It is said by some writers, that it is impossible to make time of the essence of the contract where damages may compensate for the delay. But this is not correct as a general proposition. And a more fit illustration of this can scarcely be found than the contract under consideration. The amount of compensation for the work is not increased or diminished by the new contract. The first contract stands is all its force, unaffected by the second, except that the payments made under the second shall be applied as a credit on the first. The obligation assumed by Emerson in the new contract was, to finish the work, as stated, by the 1st of December, in consideration that forty-four hundred dollars should be paid to him in two days, and notes given for ten thousand dollars on the completion of the work. Slater, having no other interest in the work than any other stockholder and bondholder of similar amounts, paid the forth-four hundred dollars, and agreed to give his individual notes for the ten thousand dollars. In this contract he stands in the relation of a surety, and can only be held responsible under his agreement. That time was an essential part of this contract is clear from the circumstances under which it was made, and the intent of the parties, as expressed. The continuous line to New York was the strong motive to Slater, and that could be secured only by the completion of the work on or before the 1st of December. The defendant prayed the court to instruct the jury that the plaintiff could not recover without showing the work was completed, ready for laying down the iron rails for one track, by the 1st day of December, 1854, which the court refused to do. In this, we think, there was error. On a contract where time does not constitute its essence, there can be no recovery at law on the agreement, where the performance was not within the time limited. A subsequent performance and acceptance by the defendant will authorize a recovery on a quantum meruit. It is difficut to perceive any satisfactory mode by which the defendant in the Circuit Court could recoup his demages for the failure of the plaintiff to perform in that action, or by bringing another suit. As a stock and bond holder, his damages would be remote and contingent. To ascertain the general damage of the company by the failure, and distribute that amount among the members of the company in proportion to their interests, would seem to be the proper mode; and this would be complicated, and not suited to the action of a jury. The judgment of the Circuit Court is reversed, with costs.
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60.US.388
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Where a party brought an ejectment in a State court, founding his title upon documents showing a-settlement claim under thedaws of the United States; and the Supreme Court of the State decided in favor of that title, the opposite party cannot bring the case to this cQurt under the 25th section of the judiciary act. This court has no jurisdiction over such a case.
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This is a writ of error to the Supreme Court of the State of Arkansas. A brief summary of the case will be sufficient to show that this court have no jurisdiction. The defendants in error, who were the plaintiffs in the court below, brought their action of ejectment in the State court to recover certain premises described in the declaration. By a statute of Arkansas, a party may maintain an ejectment upon an equitable title. And the defendants in error, in order to show such a title in themselves, offered in evidence certain documents tending to prove that a certain Ludovicus Belding had, by settlement in 1829, acquired a pre-emption right to the land in question, and that they are his heirs at law, and have paid to the proper officer the price fixed by the Government. The plaintiff in error offered no evidence of title in himself, although he was in possession of the land. And at the trial, the defendants in error asked the court to instruct the jury that the papers and documents read in evidence by them were sufficient to maintain the action, if the defendant in error was in possession of any part of the land at the commencement of the suit, and also that they were entitled to recover, by way of damages, reasonable rents and profits. The plaintiff in error, on his part, asked the court to instruct to jury that the certificates and documents offered by the defendants in error were void, and conferred no title to the premises. This is the substance of the instructions asked for by the respective parties, although drawn out at greater length, and shows the questions presented for the decision of the court. The court gave the instructions asked for by the defendants in error, and refused those requested by the plaintiff. Under these instructions, the jury found a verdict in favor of the defendants in error, and a judgment was entered accordingly, which was afterwards affirmed in the Supreme Court of the State; and upon that judgment, this writ of error was brought. It appears, therefore, that no right was claimed by the plaintiff in error under any act of Congress, or under any authority derived from the United States. He merely objected to the validity of the title claimed by the defendants in error. As the case appears on the record, he was a mere trespasser, holding possession in opposition to a title claimed under the United States. The decision of the State court in favor of the title thus claimed by the defendants in error can certainly give the plaintiff no right to bring this writ under the twenty-fifth section of the act of 1789. He claimed no right under the United States, and consequently can have no foundation for his writ of error. The case cannot be distinguished from that of Fulton and others v. McAffea, (16 Pet., 149,) and the writ must be dismissed for want of jurisdiction.
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60.US.182
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Where an appeal is taken to this court, the transcript of the record must be filed and the case docketed at the, term next succeeding the appeal. Although the case must be dimissed if the transcript is not filed in time, yet the appellant can prosecute another appeal at atny time within five years from the date of the decree, provided the transcript is filed here and the case docketed at the term next succeeding the date -of such second appeal.
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This is an appeal from the Circuit Court for the district of Maryland. The decree from which the appeal has been taken was passed by the Circuit Court on the 17th day of November, 1855 and the appeal was prayed on the same day in open court. But it was not prosecuted to the next succeeding term of this court, and no transcript of the record was filed here during that term. But a transcript has been filed at the present term of this court, and the case docketed. And a motion is made to dismiss it, upon the ground that the appeal is not legally before this court, according to the act of Congress regulating appeals. The construction of this act of Congress, and the practice of this court under it, has been settled by the cases of Villalobos v. The United States, (6 Howard, 81,) and The United States v. Curry, (6 Howard, 106.) The transcript must be filed in this court and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction. This case must therefore be dismissed. But the dismissal does not bar the appellant from taking and prosecuting another appeal at any time within five years from the date of the decree, provided the transcript is filed here and the case docketed at the term next succeeding the date of such second appeal.
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60.US.150
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It cannot be doubted that a master has power to sell both vessel and cargo, in certain cases of absolute necessity. But this )ule had no application to a wreck where the property is deserted, or about to become so, and the person who has it ii his power to save the crew, and salve the cargo, prefers t drive a bargain with-the master, and where th# necessity is imperative because it is the price of safety. No valid reason can be dsigned for fixing the reward for salving derelict property at "'not more than a half' or less than a third of the property saved." The true principle in all cases is, adequate reward according to the circumstances of the 'case. Where the property salved was transported by the salvors from Bebring's Straits to the Sandwich Islands, and thence to New York, the salvage service was complete when the property Was brought to a port of safety. The court allowed the salvors the onehalf for this service, and also freight on thp other moiety from the Sandwich Islands to New York.
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THIS was an appeal from the Circuit Court of the United States for the southern district of New York, sitting in admiralty. It was a libel filed by the owners of the ship Richmond and cargo, under circumstances which are particularly stated in the opinion of the court. The District Court dismissed the libel, thereby affirming the sales. The Circuit Court reversed this decree, and declared the sales invalid, but that the respondents were entitled to a moiety of the net proceeds, in the New York market, of the articles brought in their respective ships, and sold by the said respondents, respectively; and that they pay to the owners of the Richmond the other moiety of the said proceeds, with interest, to be computed at the rate of seven per cent. per annum, from the dates of the sales of the said articles. The claimants appealed to this court. It was argued by Mr. O'Connor for the appellants, and Mr. Lord for the appellees. As this case involved some very important points of law, with respect to the rights of captains of vessels upon the ocean, and also the rights and duties of salvors, the reporter thinks it proper to take an extended view of the arguments of counsel, although they sometimes refer to depositions and facts which are not especially mentioned in the narrative, which is given in the opinion of the court. Mr. O'Connor, for the appellants, made the following points: First Point.—The decree of the Circuit Court cannot be sustained, unless, by an unbending rule which admits of no exception or qualification, the power of the master to sell is absolutely limited to a sale by auction, with the advantage of free competition between rival purchasers. If, in any case, or under any circumstances, he may sell by private contract and to a single purchaser, the decree is erroneous. I. The authority of the master to sell in cases of extreme necessity like the present, is, as a general proposition, definitively settled. Even where there is only 'a probability of loss, and it is made more hazardous by every day's delay,' to act promptly, and thereby 'to save something for the benefit of all concerned, though but little may be saved,' is his imperative duty. (Abbott on shipping, 5 Am. ed., pp. 14, 19; Ib., note to page 19; Brig Sarah Ann, 2 Sumner, 215; New England Ins. Co. v. Sarah Ann, 13 Peters, 387.) II. The master of the Richmond had no other resort, for the purpose of saving anything, than the sale which he made. 1. Even if transportation to the shore was practicable, every witness who was examined testifies that preservation there, through the long winter then approaching, was not possible. The faint intimations to the contrary by Reeve, and those still fainter put forth by Cherry, scarcely form an exception to the universality of this opinion. 2. That freighting or salvage services were unknown in those regions, and would not have been undertaken by any one, is still more distinctly established by the proofs. It rests not merely on the uniform opinion of experts, the absence of practice, the extreme remoteness of the scene from the theatre of any human action, except catching whales; for it is proven by the form of the insurance policies used by American whalers, the only civilized visiters of the territory. (1 Seward's Works, p. 242; The Boston, 1 Sumner, 335, 336; Elizabeth and Jane, Ware, 38.) a. The freight, even as far as the Sandwich Islands, according to the best guess the libellants could elicit from any witness, if obtained by a miracle, would have exceeded the alleged maximum allowance in salvage cases. b. A salvage service would involve a transportation over 25,000 miles for adjudication. A judgment in rem in a foreign intermediate admiralty would not be regular or binding; nor, if so, would it be beneficial to these libellants. (The Hamilton, 3 Hagg, 168.) III. There was not want of ordinary judgment or prudence in the manner of the sale. 1. He gave notice to every vessel within reach; and, considering the season, the little experience yet had in those seas in respect to the time of its closing, and the great danger there was that the Richmond might go to pieces in case of any delay, prudence dictated the earliest possible action. a. The experts differ much as to the time of the season closing. b. Even Reeve deemed it unsafe to stay longer. c. P. Winters's anxiety to get cargo on board of the Frith for safety even before the sale is manifest. 2. The event is not the proper test, but if applied here it would favor the master's decision. He could not have induced these three ships to lie idle, and to lie still in an unlucky spot until the 18th of August, waiting for customers. And if he had the means of working this singular achievement, there is no satisfactory evidence that he could have drummed up a sufficient company to make an auction such as the decree below requires. 3. The weight of evidence is, that as much was obtained as could have been gotten if there were numerous bidders. 4. The want of precision and exactitude as to weight and measure, in a place where neither weights nor measures existed or were in use, is an unimportant circumstance. 5. Dispensing with settlement or payment till the meeting at Sandwich Islands was natural, and indeed necessary; for money was not to be had. 6. The difference in value between oil and bone, which might have led to a more profitable arrangement, did not at the time occur to any one concerned in these transactions. It is not necessary to the validity of the sale, that in every detail the most subtle contrivances ingenuity can suggest for attaining a profitable result should have been resorted to. IV. There is not the remotest ground for imputing fraud or ill motive to any one concerned. 1. That Philander Winters was in failing health, apprehensive of approaching death, and susceptible of fraternal tenderness, are not circumstances to excite suspicion of his motives. 2. The difference in age and experience between the brothers was trivial. There was evidently a total absence of concert between the three purchasing masters; and the weight of evidence is, that the Junior got the greatest amount of bone. 3. The relation between Jonas and Philander Winters, coupled with the omission of Jonas to secure for himself any advantage over the others, and his letting the wreck go to a stranger for $5, conclusively repel every suggestion of this kind. They also present a vivid picture of the extraordinary condition of things produced by a shipwreck in the Arctic regions. 4. The small price given for the wreck is like what frequently happens at regular auction sales with full competition. (7 Law Reporter, 378; 6 Cowen's Rep., 271.) 5. The resort to the forms of an auction may indeed have been idle, as there were not purchasers enough to take the whole, and so, necessarily, no competition; but, pursuing imitatively the practice in the world, is not alone adequate proof that these Polar wanderers were seeking to color the transaction. V. None of the preceding propositions are affected by the testimony of Reeve and Cherry. 1. They are interested in the result, and actual prosecutors of the claim. Their testimony should be wholly rejected as incompetent, because of their interest. (The Boston, 1 Sumner, 328.) 2. They are evidently uncandid, self-impeached in a considerable degree, and are contradicted in many particulars. (The Jane, 2 Hagg, 338; The Boston, 1 Sumner, 345.) Second Point.—The decree of the Circuit Court appears to borrow some of its principles from analogy to the position, assumed as law, that a contract between salvors and the salved, made at sea, is necessarily and per se void. Such is not the case; and the most that can be said on that head is, that the nature of the subject gives apparently more occasion to the 'chancery of the sea' than the chancery of the land, to vacate oppressive and unreasonable contracts. 1. There are two obiter dicta to that effect in 1 Bee, (pp. 136, 139;) but the English authorities, and those in the American admiralty, including this court, are merely that such agreements must appear to be fair and reasonable. (The True Blue, 2 W. Rob., 176; The Graces, 2 W. Rob., 294; The Westminster, 1 W. Rob., 235; The Industry, 3 Hogg, 205; The Mulgrave, 2 Hogg, 77; The Emulous, 1 Sumner, 210, 211; Houseman v. Sch. North Carolina, 15 Peters, 45.) Third Point.—The libellants err in supposing that the law of nature, which enforces the saving of life as a duty, has any force in relation to the saving of property. (The Boston, 1 Summer, 335, 336; The Zephyr, 2 Hogg, 43; The Ganges, 1 Notes of Cases, 87; The Margaret, 2 Hagg, 48, note.) Fourth Point.—It is not, as claimed by the libellants, a fixed and invariable rule, that salvage, in cases of derelict, shall not exceed one-half the value; and, if such appeared to be the rule in all former decisions, the present is a new case in all its features, and would require a higher compensation. I. This moiety practice has a very barbarous origin, and is entitled to no respect. The authorities all show that it has no binding force, the allowance being merely discretionary. (The Aquila, 1 C. Rob., 41, 47, and note; 1 Sumner, 214, 215; 1 Story, 323; 1 Ware, 39; The Huntress, 1 Wallace, jr., 70.) II. The instances of salvage service to be found in the books are confined to the highways of commerce, and within comparatively narrow spaces. There is no recorded judgment upon the salvage to be allowed for rescuing property from shipwreck, under circumstances at all comparable with the present case. (The Martha, 3 Hagg, 434; Elliotta, 2 Dodson, 75; The Effort, 3 Hagg, 166; L'Esperance, 1 Dodson, 49; Sprague v. 140 Bbls. Flour, 1 Story, 197; Peisch v. Ware, 4 Cranch, 346; The Reliance, 2 Hagg, 90, note; The Jubilee, 3 Hagg, 43, note; The Jonge, 5 Ch. Rob., 322; Howland v. 210 Bbls. Oil, 7 Law Rep., 377; The Swan, 1 W. Rob., 70.) Fifth Point.—The power of the master to sell in a case of extreme necessity, allows him to sell as he may. In the Polar regions, where, by an invincible and irreversible law of nature, it is imposible to perform the duty of agent for all concerned, in the methods usually employed within the territory of trade and civilization, he may still save what can be saved, by using such means as present themselves. Mr. Lord, for the appellees, made the following points:First Point.—1. The whole transaction was in its nature a salvage from a ship in hopeless distress on the high seas, and near an uninhabited coast; with a master and crew dependent on the other ships; which master was willing and had offered to give all the cargo, in order to be taken directly home, after a three years voyage. It therefore belongs to courts of admiralty to judge it by its own rules of humanity, policy, and justice. 2. In all cases within the admiralty jurisdiction, the court, as the chancery of the sea, supervises all attempted contracts, where distress of a ship or her crew enter into the transaction. 3. To allow contracts between parties dependent for salvage service and salvors to be valid, would defeat the jurisdiction of admiralty entirely. (Cowel v. The Brothers; Schultz v. The Mary, Bee's Rep., 136, 137; The Emulous, 1 Sumn. C. C. R., 210; The Henry Ewbank, 1 Sumn., 416; Bearse v. 340 Pigs Copper, 1 Story R., 323; Laws of Oleron, Ch. IV, (Godolphin, art. 4; 1 Peters Adm., App., art. 4 and art. 9;) The Packet, 3 Mason R., 253, 260; La Isabel, 1 Dodson, 273; The Augusta, 1 Dodson, 283; 8 Jurist, 716; The Westminster, 1 W. Rob., 230.) Second Point.—The form of sale attempted to be made the means of divesting the property of the wrecked ship and cargo, was invalid in law; and, in substance and in circumstance, fraudulent as to the owners of the property. 1. There was no market nor any market value at the time and place of sale, whereby the form of a sale could afford any test of actual value. There was no competition, or expectation of it, by those who were to attend the sale; and the whole question of adequacy of price or reasonableness of conduct is as open as it would have been without the formality; it remains purely a question of salvage. (The Tilton, 5 Mason R., 477; The Sarah Ann, 2 Sumner, 217, S. C., 13 Peters R., 402.) 2. The form of a sale was contrived, arranged, and conducted, not by the master of the wrecked ship, but by his brother, the master of the saving ship, and his associates, masters of the other ships, to whom the master of the wrecked ship had offered to abandon all, for the sake of a speedy passage home. The master of the wrecked ship exercised no power of sale or other power whatever; he was throughout passive, and without the spirit or means of resistance to any demand whatever. 3. The absence of all arrangement to protect the interest of the sellers, as to quantity, security for price, means of examination of detail and mode of selling, would have avoided this form of a sale, if made under any circumstances. In all particulars of quantity saved, value of property, probability of recovery, or of loss, the transaction remains wholly open to be adjudged as in a case of salvage. Third Point.—The salvage awarded was liberal, and fully and generously sufficient. 1. There was no danger worth remunerating; none beyond any shore salvage. 2. There was no generosity of motive in the salvors; but, on the contrary, there was an attempt to avoid the adjudication of the appropriate salvage tribunal, and actually to secrete the whalebone, the part of the saved property most valuable for the purpose of transportation home. 3. The attempt to show that it was as well to fill up the ships by catching whales and trying out the oil, as by taking oil and whalebone already prepared and at hand, entirely failed, and is intrinsically incredible. 4. The relations between the parties to the wrecked ship and cargo and the two saving ships, should have prevented, and should prevent, the latter from stripping the former, whether by a pretended sale or on a real claim of salvage. 5. The appellate court will not disturb an adjudication of salvage, unless largely erroneous. (The Sybil, 4 Wheaton, 98; Hobart v. Drogan, 10 Peters R., 108.) Mr. Justice GRIER delivered the opinion of the court. The libellants, owners of the ship Richmond and cargo, filed the libel in this case for an adjustment of salvage. They allege, that the ship Richmond left the port of Cold Spring, Long Island, on a whaling voyage to the North and South Pacific Ocean, in July, 1846; that on the 2d of August, 1849, in successful prosecution of her voyage, and having nearly a full cargo, she was run upon some rocks on the coast of Behring's Straits, about a half mile from shore; that while so disabled, the whaling ships Elizabeth Frith and the Panama, being in the same neighborhood, and about to return home, but not having full cargoes, each took on board some seven or eight hundred barrels of oil and a large quantity of whalebone from the Richmond; that these vessels have arrived in the port of Sag Harbor, and their owners are proceeding to sell said oil, &c., without adjusting or demanding salvage, unjustly setting up a pretended sale of the Richmond and her cargo to them by her master. The libellants pray to have possession delivered to them of the oil, &c., or its proceeds, if sold, subject to 'salvage and freight.' The claimants, who are owners of the ships Frith and Panama, allege, in their answer, that the Richmond was wholly and irrevocably wrecked; that her officers and crew had abandoned her, and gone on a barren and uninhabited shore near by; that there were no inhabitants or persons on that part of the globe, from whom any relief could be obtained, or who would accept her cargo, or take charge thereof, for a salvage compensation; that the cargo of the Richmond, though valuable in a good market, was of little or no value where she lay; that the season during which it was practicable to remain was nigh its close; that the entire destruction of both vessel and cargo was inevitable, and the loss of the lives of the crew almost certain; that, under these circumstances, the master of the Richmond concluded to sell the vessel at auction, and so much of her cargo as was desired by the persons present, which was done on the following day, with the assent of the whole ship's company. Respondents aver that this sale was a fair, honest, and valid sale of the property, made from necessity, in good faith, and for the best interests of all concerned, and that they are the rightful and bona fide owners of the portions of the cargo respectively purchased by them. The District Court decreed in favor in claimants; on appeal to the Circuit Court, this decree was reversed; the sale was pronounced void, and the respondents treated as salvors only, and permitted to retain a moiety of the proceeds of the property as salvage. The claimants have appealed to this court, and the questions proposed for our consideration are, 1st, whether, under the peculiar circumstances of this case, the sale should be treated as conferring a valid title; and, if not, 2d, whether the salvage allowed was sufficient. 1. In the examination of the first question, we shall not inquire whether there is any truth in the allegation that the master of the Richmond was in such a state of bodily and mental infirmity as to render him incapable of acting; or whether he was governed wholly by the undue influence and suggestions of his brother, the master of the Frith. For the decision of this point, it will not be found necessary to impute to him either weakness of intellect or want of good faith. It cannot be doubted that a master has power to sell both vessel and cargo in certain cases of absolute necessity. This, though now the received doctrine of the modern English and American cases, has not been universally received as a principle of maritime law. The Consulado del Mare (art. 253) allows the master a power to sell, when a vessel becomes unseaworthy from age; while the laws of Oleron and Wisby, and the ancient French ordinances, deny such power to the master in any case. The reason given by Valin is, that such a permission, under any circumstances, would tend to encourage fraud. But, while the power is not denied, its exercise should be closely scrutinized by the court, lest it be abused. Without pretending to enumerate or classify the multitude of cases on this subject, or to state all the possible conditions under which this necessity may exist, we may say that it is applied to cases where the vessel is disabled, stranded, or sunk; where the master has no means and can raise no funds to repair her so as to prosecute his voyage; yet, where the spes recuperandi may have a value in the market, or the boats, the anchor, or the rigging, are or may be saved, and have a value in market; where the cargo, though damaged, has a value, because it has a market, and it may be for the interest of all concerned that it be sold. All the cases assume the fact of a sale, in a civilized country, where men have money, where there is a market and competition. They have no application to wreck in a distant ocean, where the property is derelict, or about to beeome so, and the person who has it in his power to save the crew and salve the cargo prefers to drive a bargain with the master. The necessity in such a case may be imperative, because it is the price of safety, but it is not of that character which permits the master to exercise this power. As many of the circumstances attending this case are peculiar and novel, it may not be improper to give a brief statement of them. The Richmond, after a ramble of three years on the Pacific, in pursuit of whales, had passed through the sea of Anadin, and was near Behring's Straits, in the Arctic ocean, on the 2d of August, 1849. She had nearly completed her cargo, and was about to return; but, during a thick fog, she was run upon rocks, within half a mile of the shore, and in a situation from which it was impossible to extricate her. The master and crew escaped in their boats to the shore, holding communication with the vessel, without much difficulty or danger. They could probably have transported the cargo to the beach, but this would have been unprofitable labor, as its condition would not have been improved. Though saved from the ocean, it would not have been safe. The coast was barren; the few inhabitants, savages and thieves. This ocean is navigable for only about two months in the year; during the remainder of the year it is sealed up with ice. The winter was expected to commence within fifteen or twenty days, at farthest. The nearest port of safety and general commercial intercourse was at the Sandwich Islands, five thousand miles distant. Their only hope of escape from this inhospitable region was by means of other whaling vessels, which were known to be cruising at no great distance, and who had been in company with the Richmond, and had pursued the same course. On the 5th of August the fog cleared off, and the ship Elizabeth Frith was seen at a short distance. The officers of the Richmond immediately went on board, and the master informed the master of the Frith of the disaster which had befallen the Richmond. He requested him to take his crew on board, and said, 'You need not whale any more; there is plenty of oil there, which you may take, and get away as soon as possible.' On the following day they took on board the Frith about 300 barrels oil from the Richmond. On the 6th, the Panama and the Junior came near; they had not quite completed their cargoes; as there was more oil in the Richmond than they could all take, it was proposed that they also should complete their cargoes in the same way. Captain Tinkham, of the Junior, proposed to take part of the crew of the Richmond, and said he would take part of the oil, 'provided it was put up and sold at auction.' In pursuance of this suggestion, advertisements were posted on each of the three vessels, signed by or for the master of the Richmond. On the following day the forms of an auction sale were enacted; the master of the Frith bidding one dollar per barrel for as much as he needed, and the others seventy-five cents. The ship and tackle were sold for five dollars; no money was paid, and no account kept or bill of sale made out. Each vessel took enough to complete her cargo of oil and bone. The transfer was effected in a couple of days, with some trouble and labor, but little or no risk or danger, and the vessels immediately proceeded on their voyage, stopping as usual at the Sandwich Islands. Now, it is evident, from this statement of the facts, that, although the Richmond was stranded near the shore upon which her crew and even her cargo might have been saved from the dangers of the sea, they were really in no better situation as to ultimate safety than if foundered or disabled in the midst of the Pacific ocean. The crew were glad to escape with their lives. The ship and cargo, though not actually derelict, must necessarily have been abandoned. The contrivance of an auction sale, under such circumstances, where the master of the Richmond was hopeless, helpless, and passive—where there was no market, no money, no competition—where one party had absolute power, and the other no choice but submission—where the vendor must take what is offered or get nothing—is a transaction which has no characteristic of a valid contract. It has been contended by the claimants that it would be a great hardship to treat this sale as a nullity, and thus compel them to assume the character of salvors, because they were not bound to save this property, especially at so great a distance from any port of safety, and in a place where they could have completed their cargo in a short time from their own catchings, and where salvage would be no compensation for the loss of this opportunity. The force of these arguments is fully appreciated, but we think they are not fully sustained by the facts of the case. Whales may have been plenty around their vessels on the 6th and 7th of August, but, judging of the future from the past, the anticipation of filling up their cargo in the few days of the season in which it would be safe to remain, was very uncertain, and barely probable. The whales were retreating towards the north pole, where they could not be pursued, and, though seen in numbers on one day, they would disappear on the next; and, even when seen in greatest numbers, their capture was uncertain. By this transaction, the vessels were enabled to proceed at once on their home voyage; and the certainty of a liberal salvage allowance for the property rescued will be ample compensation for the possible chance of greater profits, by refusing their assistance in saving their neighbor's property. It has been contended, also, that the sale was justifiable and valid, because it was better for the interests of all concerned to accept what was offered, than suffer a total loss. But this argument proves too much, as it would justify every sale to a salvor. Courts of admiralty will enforce contracts made for salvage service and salvage compensation, where the salvor has not taken advantage of his power to make an unreasonable bargain; but they will not tolerate the doctrine that a salvor can take the advantage of his situation, and avail himself of the calamities of others to drive a bargain; nor will they permit the performance of a publid duty to be turned into a traffic of profit. (See 1 Sumner, 210.) The general interests of commerce will be much better promoted by requiring the salvor to trust for compensation to the liberal recompense usually awarded by courts for such services. We are of opinion, therefore, that the claimants have not obtained a valid title to the property in dispute, but must be treated as salvors. 2. As to the amount of salvage. While we assent to the general rule stated by this court, in Hobart v. Dorgan, (10 Peters, 119,) that 'it is against policy and public convenience to encourage appeals of this sort in matters of discretion,' yet it is equally true, that where the law gives a party an appeal, he has a right to demand the conscientious judgment of the appellate court on every question arising in the cause. Hence many cases are to be found where the appellate court have either increased or diminished the allowance of salvage originally made, even where it did not 'violate any of the just principles which should regulate the subject.' (See The Thetis, 2 Knapp, 410.) Where it is not fixed by statute, the amount of salvage must necessarily rest on an enlarged discretion, according to the circumstances of each case. The case before us is properly one of derelict. In such cases, it has frequently been asserted, as a general rule, that the compensation should not be more than half nor less than a third of the property saved. But we agree with Dr. Lushington, (The Florence, 20 E. L. and C. R., 622,) 'that the reward in derelict cases should be governed by the same principles as other salvage cases—namely, danger to property, value, risk of life, skill, labor, and the duration of the service;' and that 'no valid reason can be assigned for fixing a reward for salving derelict property at a moiety or any given proportion; and that the true principle is, adequate reward, according to the circumstances of the case.' (See, also, The Thetis, cited above.) The peculiar circumstances of this case, which distinguish it from all others, and which would justify the most liberal allowance for salvage, is the distance from the home port, twenty-seven thousand miles; and from the Sandwich Islands, the nearest port of safety, five thousand miles. The transfer of the property from the wreck required no extraordinary exertions or hazards, nor any great delay. The greatest loss incurred was the possible chance, that before the season closed in, the salving vessels might have taken a full cargo of their own oil. But we think this uncertain and doubtful speculation will be fairly compensated by the certainty of a moiety of the salved property at the first port of safety. The libellants claim only the balance, 'after deducting salvage and freight,' conceding that, under the circumstances, the salvors were entitled to both. When the property was brought to a port of safety, the salvage service was complete, and the salvors should be allowed freight for carrying the owners' moiety over twenty thousand miles to a better market, at the home port. As this case has presented very unusual circumstances, and as we think the claimants have acted in good faith in making their defence, all the taxed costs should be paid out of the fund in court. The case is therefore remitted to the Circuit Court, to have the amount due to each party adjusted, according to the principles stated. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to have the amount due to each party adjusted, according to the principles stated in the opinion of this court, and that all the costs of said cause in this court, and in the Circuit and District Courts, be paid out of the fund in the said Circuit Court.
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60.US.376
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Where money was borrowed from a bank upon a promissory note, signed by the principal and two tureties, and the principal debtor, by way of counter security, conveyed certain property to a trustee, for the purpose of indemnifying his sureties, it was necessary to make the trustee and the cestui que trust parties to a bill filed by the bank, asserting a special lien upon the property thus conveyed. But where the principal debtor hdd made a fraudulent conveyance of the property, which had continued in his possession, after the execution of the first deed, and then died, a bill was good, which was filed by the bank against the administrators, for the purpose of setting aside the fraudulent conveyance, and bringing the property into the assets of the deceased, for the benefit of all creditors who 'might apply.
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This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Arkansas. It appears from the allegations of the bill, which are supported by the proofs, that in December, 1843, John D. Bracy, then a resident of Alabama, borrowed of the Branch of the Bank of the State of Alabama at Mobile (the appellees in this case) the sum of $9,065, and that Maria Matheson, who was his mother, and another person, joined in the promissory note which was given to the bank for the loan. To indemnify Mrs. Matheson, Bracy conveyed certain negro slaves to one Gale, in trust, to save her harmless. The debt not being paid at maturity, the bank recovered a judgment on it in November, 1845. The trustee afterwards sold some of the slaves, and their price was applied to reduce the debt; but some time in the year 1846, Bracy privately left the State of Alabama, and carried away with him the residue of the slaves, and some other property, not leaving, so far as appears, any other property in that State, out of which the judgment in favor of the bank could be satisfied. He appears to have been for a time in the State of Mississippi. Sometime in 1847 he went to Louisiana; and in the year 1848 he removed with these slaves to White county, in the State of Arkansas, where he employed them in making some improvements on a tract of Government land, where he and they resided. In September, 1849, Bracy went to Louisiana, where Margaret McRea, his sister, one of the appellants, then resided, and there made a bill of sale of all the slaves to her. She sent one of her sons to take possession of them; and Bracy also returned to their place of residence, in White county, where he continued to reside until the spring of 1850, when Mrs. McRea moved thither; and from that time they resided together, she having entered the land on which the plantation was, and taken a title in her own name. Bracy continued to reside there, having the principal ostensible management of the business of the plantation, until about a year before his decease, in April, 1852, when he removed to the county town, about six miles distant, to practise his profession as an attorney. He died deeply insolvent, the debts proved against his estate being upwards of fourteen thousand dollars; the sales of all his inventoried effects amounting only to the sum of $345.90. The bill asserts a lien on these slaves by virtue of the trust-deed, of which it avers Mrs. McRea had notice when she purchased. But our opinion is, that Gale, the trustee, and Mrs. Matheson, the cestui que trust, are indispensable parties to a bill for the subjection of this property to the claim of the bank, by virtue of the trust-deed. Upon that footing the bill cannot be maintained. But we are all of opinion, that the sale to Mrs. McRae was in fraud of creditors, and especially of the bank. Without detailing the evidence, we think it enough to say, that the removal of the property from Alabama by Bracy, leaving the judgment of the bank unsatisfied, his insolvency, the relation between the parties, their subsequent residence together, the manner in which the property was held and managed, are causes of very grave suspicion. The bill charges, that if this property was conveyed to her, 'it was so conveyed with intent and for the purpose of hindering, delaying, and defrauding the creditors of the said John D. Bracy.' The answer of Mrs. McRae does not deny this allegation. In the course of responding to the claim of the bill founded on the trust-deed, her answer says: 'She therefore charges, that there was no encumbrance whatever on the said slaves, or any of them, at the time she purchased them; and avers that she purchased them in good faith, and without any notice or knowledge whatever of a subsisting lien upon them by virtue of said deed of trust.' We understand this averment of good faith on her part to relate simply to her ignorance of a lien by the trust-deed, and that it does not meet the explicit allegation in the bill, that the purpose of the sale was to conceal the property from creditors; and though the failure of the answer to meet this charge in the bill does not operate as a technical confession of its truth, it does lay a foundation for the belief that if the defendant could have truly denied it, she would not have foregone the decided advantage of such a denial in an answer which puts the complainant on proof of the contested fact by more than one witness. The answer alleges, that the agreed price of the sale was $3,500, payable in instalments of $875 each, in five, six, seven, and eight years; and that four promissory notes were executed accordingly. It does not say what was done with the notes, after they were executed. No such notes were found among the effects of Bracy, to be inventoried. Neither of these notes, if in existence, had become payable when this bill was filed, and we think the attempt to show that something had been paid on account of them by the delivery of some cotton is not successful. In our opinion, the charge in the bill, that the sale was fraudulent as to creditors, is made out in proof, and this is aufficient to sustain the decree of the Circuit Court. The decree of the Circuit Court is affirmed with costs.
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60.US.64
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Where no- error appears upon the record in the proceedings of the Circuit Court, the case having been left to a jury, and no instructions asked from the court, the judgment below must be affirmed.
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JAMES STEVENS, For himself. In this court, the following brief was filed by Mr. Ames, no counsel appearing for the plaintiff in error: The record in this case shows, that at the November term of the Circuit Court for the district of Rohode Island, 1848, the plaintiff in error brought a qui tam action against the defendants in error, to recover penalties and forfeitures alleged to have been incurred by them under the act of Congress passed February 3d, 1831, entitled 'An act to amend the several acts respecting copyrights;' that at the June term of said court, 1850, the cause was submitted, upon the general issue, to a jury, who, in due form, returned a verdict in favor of the defendants in error, of 'not guilty;' whereupon judgment was entered, that they have and recover their costs of suit. The record discloses no error in law, nor, to the knowledge of the defendants in error or of their counsel, was any error of law brought upon the record by the allowance of a bill of exceptions. The court has no choice, therefore, but to confirm the judgment below, with costs. SAMUEL AMES, For Defendants in Error. Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court for the district of Rhode Island. An action was brought by the plaintiff in the Circuit Court, alleging that he was the author of a topographical map of the State of Rhode Island and Providence Plantations, surveyed trigonometrically by himself, the copyright of which he secured under the act of Congress of the 3d April, 1831, entitled 'An act to amend the several acts respecting copyrights;' and he avers a special compliance with all the requisites of said act, to vest in him the copyright of said map or chart. And he charges the defendants with having published two thousand copies of his map, and sold them within two years before the commencement of the action, in violation of his right, secured as aforesaid, to his damage four thousand dollars. The defendants pleaded not guilty. The case was submitted to a jury, who returned a verdict of not guilty. A judgment was entered against the plaintiff for costs. A writ of error was procured, and bond given to prosecute it with effect. The defendant in proper person assigns for error, 'that the verdict and judgment were given against the plaintiff in error, whereas the verdict and judgment should have been given for the plaintiff, and he prays a reversal of the judgment on this ground.' In a very short argument, the plaintiff in error says, the principal questions are: Was the verdict and judgment correct? Was the sale of the engraved plate, on execution, the sale of the copyright? Did such sale authorize the defendants, or any other person, to print and sell this literary production, still subsisting under a copyright in the plaintiff. And he refers to 14 Howard, 528, Stevens v. Cady. In that case this court held that a sale of the copperplate for a map, on execution, does not authorize the purchaser to print the map. Two or three depositions, not certified with the record, were handed to the court as having been omitted by the clerk in making up the record; but it does not appear that they were used in the trial before the Circuit Court; and if it did so appear, no instructions were asked of the court to the jury, to lay the foundation of error. It is to be regretted that the plaintiff in error, in undertaking to manage his own case, has omitted to take the necessary steps to protect his interest. There is no error appearing on the record which can be noticed by this court; the judgment of the Circuit Court is therefore affirmed with costs.
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60.US.96
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The act of Congress passed on the 3d of March, 1837, (5 Stat. at L., 194,) provides that a patentee may enter a disclaimer, if he has included in his patent what he was not the inventor of; but if he recovers judgment against an infringer of his patent, he shall not be entitled to costs, unless he has entered a disclaimer for the part not invented. It also provides that if a patentee unreasonably neglects or delays to enter a disclaimer, he shall not be entitled to the benefit of the section at all. In 1845, McCormick obtained a patent for improvements in a reaping machine, in which, after filing hia specification, he claimed, amongst other things, as follows, viz: "2d. I claim the reversed angle of the teeth of the blade, in manner described. 413d. I claim the arrangement and construction of the fingers, (or teeth for supporttIg the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described." These two clauses are not to be read in connection with each other, but separately. The first claim, viz: for "the reversed angle of the teeth of the blade," not being new, and not being disclaimed, he was not entitled to costs, although he recovered a judgment for a violation of other parts of his patent. Under the circumstances of the case, the patentee was not guilty of unreasonable neglect or delay in making the disclaimer, which is a question of law for the court tb decide.
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THIS case came up, by writ of error, from the Circuit Court of the United States for the northern district of New York. It was a suit brought by McCormick against Seymour and Morgan, for a violation of his patent right for reaping machines, which suit was previously before this court, and is reported in 16 Howard, 480. It will be seen by reference to that case that McCormick obtained three patents, viz: in 1834, 1845, and 1847. The suit, as originally brought, included violations of the patent of 1845, as well as that of 1847; but the plaintiff, to avoid delay, proceeded then only in his claim for a violation of the patent of 1847, which consisted chiefly in giving to the raker of the grain a convenient seat upon the machine. When the case went back under the mandate of this court, the claim was for the violation of the patent of 1845, that of 1847 being mentioned only in the declaration, and not brought before the court upon the trial, the main question being the violation of the patent of 1845. McCormick's claim in the patent of 1845 was as follows, viz: I claim, 1st, the curved (or angled downward, for the purpose described) bearer, for supporting the blade in the manner described. 2d. I claim the reversed angle of the teeth of the blade, in manner described. 3d. I claim the arrangement and construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described. 4th. I claim the combination of the bow, L, and dividing iron, M, for separating the wheat in the way described. 5th. I claim setting the lower end of the reel-post, R, behind the blade, curving it at R 2, and leaning it forward at top, thereby favoring the cutting, and enabling me to brace it at top by the front brace (S) as described, which I claim in combination with the post. The fourth and fifth claims were those which were alleged to have been infringed. The defendants pleaded the general issue, and gave notice of various prior inventions and publications in public works, which they designed to give in evidence in their defence. The last trial was had in October, 1854, when the plaintiff obtained a verdict for $7,750, and judgment was entered in June, 1855, for $10,348.30. There were twenty exceptions taken in the progress of the trial, twelve of which were as to rulings upon points of evidence, which it is not material to notice. The remaining eight were to portions of the charge of the court to the jury. The defendants, in addition to other matters of defence, alleged that the second claim was not new, and that as there had been unreasonable delay in the disclaimer of it, the plaintiff was not entitled to recover at all; and, at all events, was not entitled to recover costs. Only such portions of the charge of the court to the jury will be here inserted, as were the subjects of the opinion of this court. One part of the charge was as follows, viz: 'The claim in question is founded upon two parts of the patent. As the construction of that claim is a question of law, we shall construe it for your guidance. In the fore part of the patent, we have a description of the blade, and of the bladecase, and of the cutter, and of the mode of fastening the blade and the blade-case and the cutter, and of the machinery by which the arrangement is made for the cutter to work. We have also the description of the spear-shaped fingers, and of the mode by which the cutter acts in connection with those fingers. Then, among the claims are these: '2. I claim the reversed angle of the teeth of the blade in manner described. 3. I claim the arrangement of the construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described.' Now, it is insisted, on the part of the learned counsel for the defendants, that this second claim is one simply for the reversed angles of the sickle-teeth of the blade. These teeth are common sickle-teeth, with their angles alternately reversed in spaces of an inch and a quarter, more or less. The defendants insist that the second claim is merely for the reversed teeth on the edge of the cutter, and that the reversing of the teeth of the common sickle as a cutter in a reaping machine was not new with the plaintiff; and that if it was new with him, he had discovered it and used it long before his patent of 1845. The defendants claim that Moore had discovered it as early as 1837 or 1838; and it would also seem that the plaintiff had devised and used it at a very early day after his patent of 1834—that is, the mere reversing of the teeth. But, on looking into the plaintiff's patent more critically, we are inclined to think that when the plaintiff says, in his second claim, 'I claim the reversed angle of the teeth of the blade, in manner described,' he means to claim the reversing of the angles of the teeth in the manner previously described in his patent. You will recollect that it has been shown, in the course of the trial, that in the operation of the machine, the straw comes into the acute-angled spaces on each side of the spear-shaped fingers, and that the angles of the fingers operate to hold the straws, while the sickle-teeth, being reversed, cut in both directions as the blade vibrates. The reversed teeth thus enable the patentee to avail himself of the angles on both sides of the spear-shaped fingers; whereas, if the sickle-teeth were not reversed in sections, but all ran in one direction like the teeth of the common sickle, he could use the acute angles upon only one side of the fingers, because the cutter could cut only in one direction. We are therefore inclined to think that the patentee intended to claim, by his second claim, the cutter having the angles of its teeth reversed, in connection with the angles thus formed by the peculiar shape of the fingers. And, as it is not pretended that any person invented that improvement prior to the plaintiff, the point relied on in this respect by the learned counsel for the defendant fails.' The other parts of the charge which were excepted to by the counsel for the defendants were thus specifically mentioned. To so much of the charge of the court as instructed the jury, in substance, that the plaintiff, in his patent of January 31st, 1845, did not claim the reversed angle of the teeth of the blade as a distinct invention, but only claimed it in combination with the peculiar form of the fingers described in the same patent, the defendant's counsel excepted. The defendant's counsel requested the court to instruct the jury, that if they should be satisfied that Hiram Moore was the first inventor of the reversed angle of the teeth of the blade, and that the plaintiff was notified of that fact by the testimony of Moore on the trial of this cause in June, 1851, and had not yet disclaimed that invention, then, in judgment of law, he has unreasonably delayed filing his disclaimer, and the verdict should be for the defendants. The court declined so to instruct the jury, and the defendant's counsel excepted to the refusal. The defendant's counsel further requested the court to instruct the jury, that if they should be satisfied that Hiram Moore was the first inventor of the reversed angle of the teeth of the blade, and that the plaintiff was notified of that fact by the testimony of Hiram Moore on the trial of this cause in June, 1851, and had not yet disclaimed that invention, then it was a question of fact for them to decide, whether the plaintiff had or had not unreasonably delayed the filing of a disclaimer; and, if they should come to the conclusion that there had been such unreasonable delay, their verdict should be for the defendants. The court refused so to instruct the jury, and the defendant's counsel excepted to the refusal. The defendant's counsel requested the court to submit to the jury the question under the evidence in the case, whether the plaintiff did or did not claim, in his patent of January 31st, 1845, the reversed angle of the teeth of the blade, independent of any combination. The court refused to submit that question to the jury, and the defendant's counsel excepted to the refusal. The defendant's counsel also asked the court to instruct the jury, that, from the facts that Bell's machine operated successfully in 1829, and that it operated well also in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, or some part of it. But the court held and charged, that there being no evidence respecting it, except at the trial of it in 1829, and the trial of it in 1853, the jury could not infer anything on the subject, and refused to charge as requested. The defendant's counsel excepted to the refusal, and also excepted to the charge in this respect. Upon these exceptions, the case came up to this court, and was argued by Mr. Harding and Mr. Stanton for the plaintiffs in error, and by Mr. Dickerson and Mr. Johnson for the defendant. There was also a brief filed by Mr. Selden for the plaintiffs in error. It is almost impossible to convey to the reader a clear idea of the argument, because models and drawings were produced in court by the counsel on both sides. The points made, however, were the following, viz: For the plaintiff in error. VI. The construction given in the court below, to the second claim of the patent of 1845, was erroneous. 1. The words 'in manner described,' used in the second claim, refer exclusively to the description of the construction of the sickle, given in folio 155, without reference to the peculiar shape of the fingers, or to any combination whatever. They refer to the straight blade alone, with the specified positions of its teeth. To test this construction, suppose a prosecution under this claim, of one who used such blade as is here described, with fingers having parallel sides, forming right angles with the line of the blade—could it be said that this claim was not infringed? If it could not, there must be error in the charge on this point. The construction given to this claim by the court would permit the free use by the public of the reversed angle of the sickle, when not combined with the spear-headed finger. Can that be reconciled with the language of the patentee, either in the description of his invention, or of the claim based upon it? If it can, a similar construction must be given to the third claim, which is thus rendered identical with the second, as each will then cover exactly the same combination, and the spear-head finger will be given to the public, except when combined with the straight blade and reversed angle of the teeth. We suppose the correct rule for the interpretation of patents is laid down by Mr. Curtis, in his Treatise on Patents, sec. 126. 'The nature and extent of the invention claimed by the patentee, is the thing to be ascertained; and this is to be arrived at through the fair sense of the words which he has employed to describe his invention.' But that rule, even as limited or aided by the principle referred to in section 132, viz: 'that a specification should be so construed as, consistently with the fair import of language, will make the claim co-extensive with the actual discovery,' does not relieve the plaintiff here from the distinct claim of the reversed teeth of the blade as an independent invention. This principle was well applied in the case of Haworth v. Hardcastle, (Webster's Pat. Cases, 484, 485,) from which it was taken by Mr. Curtis. In that case it is shown, by the opinion of Chief Justice Tindal, that a forced construction of the language of the patent was required to make the claim embrace what it was alleged to embrace; but in the present case a forced construction not only of the language of the claim, but of the description of the invention, must be adopted to exclude the claim of the reversed teeth of the blade as an independent invention. Such latitude of interpretation cannot be safely allowed of a patent, or any other instrument. Neither is it necessary for the protection of the rights of the patentee. If he made 'a mistake, the patent law affords means of correcting it; but until corrected, the claim must be taken as it stands, whatever error may have led to it.' (Byam v. Farr, 1 Curtis, 263; Act of 1836, sec. 13.) A patent for an invention is a grant from the Government, and should be construed, as we suppose, like all other grants, fairly and liberally for the accomplishment of the objects designed by it, and not otherwise. (Curtis, sec. 386.) Rights, the result of intellectual labor, are no doubt sacred; but we believe them no more sacred than those which are the result of more humble toil, and that the same liberality of interpretation should be extended to the title-deeds of both. That those rules of construction which are applied to patents for lands should be applied to patents for inventions. That the latter should no more be stretched beyond the fair import of their terms when the interest of the patentees would be promoted by their extension, or contracted in like degree when their interest would be promoted by their restriction, than should any other deeds or contracts. (Godson on Patents, 204, 205; Leroy v. Tatham, 14 How., p. 176.) Any more loose construction would render nugatory the statute requiring 'a written description of the invention,' &c., in 'full, clear, and exact terms,' and in case of any machine, that the patentee 'shall particularly specify, and point out the part, improvement, or combination, which he claims as his own invention or discovery.' (Act of 1836, sec. 6.) And it would render entirely useless the provision in section 13 of the same act, providing for the amendment of defective specifications. The reason usually given for requiring a more liberal construction of patents, than of other instruments, is, that there is a great difficulty in giving exact descriptions of inventions. Conceding the fact to be so, it may be a sufficient answer to say, that the statute requires an exact description as a condition of the grant. But, aside from the statute, it should be borne in mind, that every mechanic in the land is bound, at his peril, to decide correctly, from the specification, what every patent, touching his business, covers; and the question is, if the subject be difficult, where should the responsibility of its solution rest upon him who makes the description of his own work, for his own interest, and with all the aids to be derived from the Patent Office, and, if he chooses, from patent agents, and men of science skilled in such matters, or from the mechanic pretending to no particular knowledge on the subject, having no interest, and often deprived of all extraordinary aids? We think that both reason and the statute demand of him, who claims the exclusive right, to define clearly the limits of his invention. It can in no case be difficult for an inventor to say, distinctly, whether he claims two or more elements singly, or merely in combination. (Evans v. Hettick, 3 Wash., p. 408; S. C., 1 Robb, 166.) 2. The point was material. Hiram Moore used such a sickle as early as 1836, if not in 1834, and this was proved on the first trial of this case, as long ago as June, 1851. Notice of this invention by Moore was given to the plaintiff as early as September, 1850. The sickle, as used by Moore in 1836, was also described by witnesses examined in October, 1851, and cross-examined by plaintiff's counsel in this cause. The plaintiff in his history of his invention, sworn to January 1, 1848, presented to the Commissioner of Patents, for the purpose of obtaining an extension of his first patent, shows, as we think, that he did not use the blade with reversed teeth until the harvest of 1841. Under these circumstances, we insist that the plaintiff was called upon, during the three years that intervened between the trial in June, 1851, and that in October, 1854, to disclaim the invention of the reversed angle of the teeth of the blade. It was therefore a question for the jury, under section 9 of the act of March 3d, 1837, (Curtis pp. 489, 490,) whether the plaintiff had not unreasonably neglected or delayed to enter at the Patent Office his disclaimer. To allow a patentee, under such circumstances, to designedly delay a disclaimer, would defeat the manifest object of the last proviso to section 9 above referred to, which was to compel a patentee who had inadvertently covered by his patent something to which he was not entitled, and thus wrongfully obstructed its free use, to remove the obstruction as soon as possible after the discovery of his mistake. XI. The request of instructions to the jury, 'that from the facts that Bell's machine operated successfully in 1829, and that it operated well also in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, or some part of it,' should have been given; and the actual charge, 'that there being no evidence respecting it, except the trial of it in 1829, and the trial of it in 1853, the jury could not infer anything on the subject,' was erroneous. What the evidence was, of the use of Bell's machine, will be found in Loudon's Encyclopaedia of Agriculture, pp. 442 to 427, and from the testimony of Obed Hussey. We think that on this evidence, (that the machine used in England was that described by Loudon,) it was proper to submit to the jury the question as to its operation, and not to place it under the ban as an entire failure, which seems to be the effect of the charge, as it was given. If it operated well in 1829 and in 1853, which is clearly proved, and is assumed by the judge, it must certainly have been capable of operating well at any intermediate time. Whether actually used or not, is wholly immaterial. And if the machine as a whole operated well, then the divider, reel, and reel-bearer, each, operated well, and the reel was supported by a practically successful contrivance, which formed no impediment in the way of the divider, or of the division and separation of the grain, and on which no straws could clog, as the entire space beneath the reel-shaft is, in this machine, left unobstructed by the reel-bearer, which is horizontal some feet above the platform, and completely out of the reach of the grain. There is no difference between the reel-bearer in the machine of the plaintiffs in error and that in Bell's machine. Waters, (McCormick's witness,) on being shown the drawing of Bell's machine, in Loudon's Encyclopaedia of Agriculture, says: 'As a mere manner of supporting the reel, I see no difference between the method of supporting the reel in this and the defendant's machine.' This prior invention of Bell's, if the court had not substantially excluded it from the consideration of the jury, would have furnished a complete answer to the charge of infringement of the fifth claim of McCormick's patent of 1845. (Evans v. Hettick, 3 Wash., p. 408; S. C., 1 Robb, p. 166.) XII. It was erroneous to grant costs to the plaintiff, inasmuch as it appeared that he was not the first inventor of the reversed angle of the sickle, and had not filed a disclaimer prior to the commencement of the suit. (Act of 1837, sec. 9.) The testimony showed conclusively that Moore was the first inventor of the reversed angle of the teeth. Thirteenth Exception.—The description annexed to the letters patent of plaintiff describes a sickle with reversed-cut teeth, and then describes the manner in which this reversed-cut sickle operates in connection with the spear-headed fingers, 'forming an acute angle between the edge of the blade and the shoulder of the spear, by which the grain is prevented from yielding to the touch of the blade.' The specification then claims 'the reversed angle of the teeth of the blade in manner described.' 1. It also appeared, that ever since the date of the first reaping patent in 1834, the plaintiff had experimented with this reversed sickle edge without producing any successful result, until he combined it in the manner described in the patent of 1845. 2. The sickle, separate and apart from the machine, is no invention, in whatever way the teeth are cut, but when combined in the machine in the manner described, the reversed cut becomes a very valuable invention, enabling the sickle to cut itself clear each stroke; whereas, if the sickle were cut only one way, and the fingers were straight, it would only operate on the grain half the time. 3. This part of the invention was not infringed. Fourteenth Exception.—Unreasonable neglect to file a disclaimer under the ninth section of the act of 1837, is a question of fact for the jury. Fifteenth Exception.—There was no evidence that Moore had ever constructed a reversed-cut sickle in the manner described in the patent of plaintiff, nor that he had ever made one in any manner which was successful—the only claim being, that in 1836-'37 he had made a reversed-cut sickle, and, had never seen one before, while the plaintiff had done the same thing in 1834. There was therefore no fact for the jury to find, and it would have been erroneous if the court had submitted an hypothesis unsupported by evidence for their decision. The construction of the claim also settled this point, because there was a pretence that such a manner of applying the reversed-cut sickle was old. Twentieth Exception.—The facts stated in this exception, that Bell's machine operated successfully in 1829 and in 1853, are not evidence from which the jury could legally infer that it had operated successfully in the intermediate period, or any part, for there is no rule which raises a presumption of successful operation out of the facts assumed in the prayer, but rather the contrary, since, if it ever did succeed at all, it most probably never would have been abandoned, and then its continued use to a more recent date would have been quite as easily proved as its use at any prior date. Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the northern district of New York. The suit was brought by McCormick against Seymour and Morgan, for the infringement of a patent for improvements in a reaping machine granted to the plaintiff on the 31st June, 1845. The improvements claimed to be infringed were—1st, a contrivance or combination of certain parts of the machinery described, for dividing the cut from the uncut grain; and 2d, the arrangement of the reel-post in the manner described, so as to support the reel without interfering with the cutting instrument. In the course of the trial, a question arose upon the true construction of the second claim in the patent, which is as follows: 'I claim the reversed angle of the teeth of the blade in manner described.' This claim was not one of the issues in controversy, as no allegation of infringement was set forth in the declaration. But it was insisted, on the part of the defendants, that the claim or improvement was not new, but had before been discovered and in public use, and that, under the ninth section of the act of Congress passed March 3, 1837, the plaintiff was not entitled to recover cost, for want of a disclaimer of the claim before suit brought; and that, if he had unreasonably neglected or delayed making the disclaimer, he was not entitled to recover at all in the case. The ground upon which the defendants insisted this claim was not new, was, that it claimed simply the reversed angle of the teeth of the blade or cutters. The court below were of opinion, that, reading the claim with reference to the specification in which the instrument was described, it was intended to claim the reversed angle of the teeth in connection with the spear-shaped fingers arranged for the purpose of securing the grain in the operation of the cutting—the novelty of which was not denied. The majority of the court are of opinion, that this construction of the claim cannot be maintained, and that it is simply for the reversed angle of the cutters; and that there is error, therefore, in the judgment, in allowing the plaintiff costs. In respect to the question of unreasonable delay in making the disclaimer, as going to the whole cause of action, the court are of opinion that the granting of the patent for this improvement, together with the opinion of the court below maintaining its validity, repel any inference of unreasonable delay in correcting the claim; and that, under the circumstances, the question is one of law. This was decided in the case of the Telegraph, (15 How., 121.) The chief justice, in delivering the opinion of the court, observed that 'the delay in entering it (the disclaimer) is not unreasonable, for the objectionable claim was sanctioned by the head of the office; it has been held to be valid by a circuit court, and differences of opinion in relation to it are found to exist among the justices of this court. Under such circumstances, the patentee had a right to insist upon it, and not disclaim it until the highest court to which it could be carried had pronounced its judgment.' Several other questions were raised in the case, which have been attentively considered by the court, and have been overruled, but which it cannot be important to notice at large, with one exception, which bears upon the fifteenth section of the patent act of 1836. Bell's reaping machine was given in evidence, in pursuance of a notice under this section, with a view to disprove the novelty of one of the plaintiff's improvements; a description of it was read from 'Loudon's Encyclopaedia of Agriculture,' published in London, England, in 1831. In addition to the description of the machine, it appeared in the work that the reaper had been partially successful in September, 1828, and 1829. It also appeared, from the evidence of Mr. Hussey, that he saw it in successful operation in the harvest of 1853. The court was requested, on the trial, to instruct the jury, that from the facts that Bell's machine operated successfully in 1829 and in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, which was refused. Without stating other grounds to justify the ruling, it is sufficient to say, that the only authority for admitting the book in evidence, is the fifteenth section of the act above mentioned. That section provides, that the defendant may plead the general issue, and give notice in writing, among other things, to defeat the patent, 'that it (the improvement) had been described in some public work anterior to the supposed discovery thereof by the patentee.' The work is no evidence of the facts relied on for the purpose of laying a foundation for the inference of the jury, sought be obtained. The judgment of the court below is affirmed, with the qualification, that on the case being remitted to the court below, the taxation of costs be stricken from the record. Mr. Justice GRIER dissented. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the northern district of New York, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause, excepting that part embracing the taxation of costs in the Circuit Court, be and the same is hereby affirmed with costs. And it is further ordered and adjudged by this court, that this cause be and the same is hereby remanded to the said Circuit Court, with directions to strike from the record the taxation of costs in this cause.
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60.US.312
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Where bills of lading for goods, shipped on board of a steamboat in the river Mississippi, mentioned that the carrier was not to be responsible for accidents which happened from the "perils of the river," these words did not include fire amongst those perils; and: the carrier was responsible for losses by fire; although the boat was consumed without any negligence or fault of the owners, their agents, or servants. The evidence of a witness was not admissible, who offered to testify that he had not known a case where the omission of the word "fire," in the exceptions mentioned in the bill of lading, was considered to give a claim against the boat on account of a loss Sy fife. There is no ambiguity which requires to be explained, and the evidence fails to establish a usage. An insurance company', which paid these losses, had a right to seek relief from the owners of the boat. This relief c6uld be sought in equity, not only upon the general principles of equity jurisprudence, but also because, in this case, a number of shipments were joined in the same bill, and thu a multiplicity of suits was avoided.
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THIS was an appeal from the Circuit Court of the United States for the district of Missouri, sitting in equity. The bill was filed by the Memphis Insurance Company, a corporation created by the laws of Tennessee, and whose stockholders were citizens thereof, against the owners of the steamboat Convoy. In February, 1849, they received on board of their boat a large amount of cotton, to be carried from Memphis to New Orleans. The boat and cargo were destroyed by fire on the downward voyage, without any fault or negligence of the owners, their agents, or servants. The insurance company paid the owners of the cotton the amounts of their several insurances, and then filed this bill to recover such sums from the owners of the boat. The facts are more particularly stated in the opinion of the court. The Circuit Court held the owners of the boat liable, and rendered a decree against them for the amounts paid by the insurance company. There were fifteen different bills of lading mentioned in the bill. The first five, covering three hundred and eighty-eight bales of cotton, stipulated for the delivery at New Orleans, 'the dangers of the river only excepted.' In the sixth, seventh, and eighth, covering one hundred and twenty-one bales, 'the dangers of the river and unavoidable accidents only' are excepted. In the ninth, fourteenth, and fifteenth, covering two hundred and seventy-four bales, 'the unavoidable dangers of the river and fire only' are excepted; and in the tenth, eleventh, twelfth, and thirteenth, 'the dangers of the river and fire only' are excepted. The ground upon which the owners of the boat were claimed to be liable upon those bills of lading, where 'fire' was excepted, was, that the fire arose from carelessness. But in the progress of the trial this branch of the claim was given up, and the claim of the plaintiffs was declared to rest upon the construction to be given to the bills of lading, in which the vessel was merely exempted from 'the dangers of the river,' or 'the dangers of the river and unavoidable accidents.' The Circuit Court decreed that the owners of the boat were liable upon those bills of lading which contained the exception only of 'the dangers of the river,' being the first five mentioned in the bill, and dismissed the bill as to the relief sought in respect to the bills of lading in which 'the dangers of the river and unavoidable accidents' are excepted, being the sixth, seventh, and eighth, mentioned in the bill. The owners of the boat appealed to this court. The case was argued by Mr. Ewing for the appellants, and Mr. Geyer for the appellees. Mr. Justice CAMPBELL delivered the opinion of the court The appellee filed a bill in the Circuit Court against the appellants, the owners of the steamboat Convoy, a vessel formerly employed in the navigation of the Mississippi river, and which, in 1849, was consumed by fire, with a cargo of cotton. The appellee is an insurance corporation of Memphis, Tennessee, and insured eleven hundred and fifty-two bales of the cotton belonging to this cargo from loss by fire; this insurance was effected upon fifteen distinct parcels, and shipped mostly from Teunessee to a number of consignees in New Orleans. The company adjusted the losses with the assured on their policies, and bring this suit for reimbursement, by enforcing the claims of the shippers against the owners. These answer the bill by a denial of their legal responsibility for the loss. They maintain that fire is one of the perils of the river Mississippi; that all the bills of lading that exempt the carrier from a loss by perils of the river, imply fire as one of those perils; that the variations in the bills of lading, some including 'fire,' and 'unavoidable accidents' as well as fire, are referable to the fact that they are preferred by different shippers, who have different forms for expressing the same legal consequence. That they all understand that a carrier is exempt from a liability for fire on a bill of lading exonerating him from the risks of the river. It was admitted on the hearing that the boat was consumed, without any negligence or fault of the owners, their agents, or servants. The Circuit Court excused the owners from losses, where the bills of lading contained an exception of fire or unavoidable accidents, but condemned them on the others, to satisfy the demand of the company. It cannot be denied that the appellants are responsible, according to the strictness of the common-law rule determining the carrier is liability, unless an accidental fire is one of the exceptions included in the term 'perils of the river.' These words include risks arising from natural accidents peculiar to the river, which do not happen by the intervention of man, nor are to be prevented by human prudence; and have been extended to comprehend losses arising from some irresistible force or overwhelming power which no ordinary skill could anticipate or evade. (Jones v. Pitcher, 3 S. and P., 136; 4 Yerg., 48; 5 Yerg., 82; Schooner Reeside, 2 Sum., 568.) They exonerate a carrier from a liability for a loss arising from an attack of pirates, or from a collision of ships, when there is no negligence or fault on the part of the master and crew. Latterly, the courts have shown an indisposition to extend the comprehension of these words. The destruction of a vessel by worms at sea is not accounted a loss by the perils of the sea; nor was a damage from bilging, arising in consequence of the insufficiency of tackle for getting her from the dock; nor was damage occasioned to a vessel by her props being carried away by the tide while she was undergoing repairs on the beach, excused, as falling within that exception. In Laveroni v. Drury, (8 Ex. R., 166,) a question arose whether a damage to a cargo of cheese, occasioned by rats, was within the exception of the dangers or accidents of the sea and navigation; and the Continental and American authorities were cited to the Barons of the Exchequer, to show that it was, and that the carrier was excused, he having taken the usual and proper precautions against them. That court decided otherwise, and say 'the exception includes only a danger or accident of the sea or navigation, properly so called, (viz: one caused by the violence of the winds and waves, a vis major, acting upon a seaworthy and substantial ship,) and does not cover damage by rats, which is a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea.' And the court conclude 'that the liability of the master and owner of a general ship is prima facie that of a common carrier; but that his responsibility may be either enlarged or qualified by the terms of the bill of lading, if there be one; and that the question, whether the defendant is liable or not, is to be ascertained by this document when it exists.' The principle of these cases establishes a liability against a carrier for a loss by fire arising from other than a natural cause, whether occurring on a steamboat accidentally, or communicated from another vessel or from the shore; and the fact that fire produces the motive power of the boat does not affect the case. (New J. S. N. Co. v. Merchants' Bank, 6 How., 344, 381; Hale v. N. J. S. N. Co., 15 Conn., 539; Singleton v. Hilliard, 1 Strab., 203; Gilmore v. Carman, 1 S. and N., 279.) In this suit, a witness was introduced, who claims to have been long familiar with the usages of the navigation and the river insurance risks of the Mississippi, and competent to testify in reference to the perils of that river. He says, 'those are, sinking, by coming in collision with rocks, snags, or other boats or vessels, and fire; that the most common form of bills of lading contains the exceptions, perils of the river and fire; but that in many instances the word fire is omitted, and he has not known an instance where the want of that word has created a difficulty in adjusting a loss, or was considered to give a claim against a boat on account of a loss by fire.' The first inquiry is, whether this evidence is admissible. In mercantile contracts, evidence is admissible to prove that the words in which the particular contract is expressed, in the particular trade to which the contract refers, are used in a peculiar sense, and different from that which they ordinarily import, and to annex incidents to written contracts, in respect to which they are silent, but which both parties probably contemplated, because usual in such contracts. But although it is competent to explain what is ambiguous, and to introduce what is omitted, because sanctioned by usage, it is not competent to vary or contradict the terms of the contract. The exceptions in the bills of lading under consideration have been in use in policies of insurance and contracts of affreightment for a long period, and have acquired a distinct signification in the customs of merchants, and the opinions of professional men and courts. It would be surprising if any particular or artificial meaning was attached to them in the customs of the Mississippi river, contrary to, or distinguishable from, that which existed elsewhere in the community of shippers and merchants. In this case, the evidence fails to establish any peculiar sense of these words, as appropriate to the locality where the parties to this contract reside and made their contract. The evidence rather serves to show that the witness did not recognise the liability of a carrier, as it exists in the common law, and was ready to acquit him of responsibility for losses to which he did not contribute, by the negligence or fault either of himself or his agents. In Turney v. Wilson, (7 Yerger, 340)—a case decided in the State from which the shipments described in the bill were chiefly made—evidence was offered to show there was an implied contract recognised in the usages of shippers and merchants, which had prevailed from the first settlement of the country, to exempt the carrier from losses, except those proceeding from negligence or dishonesty to explain or construe a bill of lading of the common form. The court decided, that the dangers of the river were such as could not have been prevented by human skill and foresight, and were incident to river navigation. That all evidence was irrelevant that did not show that the loss was occasioned by the act of God, the enemies of the country, or dangers of the river; that the custom could not affect or in anywise alter the written contract of the parties, as contained in the bill of lading, as the language had a definite legal meaning which this custom could not change. A similar question arose in the case of the Schooner Reeside, (2 Sum., 568,) where Justice Story condemns, in pointed language, the habit of admitting loose and inconclusive usages and customs 'to outweigh the well-known and well-settled principles of law.' And in Rogers v. Mechanics' Insurance Co., (1 Story, 601,) he denies the authority of a usage of a particular port, in a particular trade, to limit or control or qualify the language of mercantile contracts, such as a policy of insurance. A usage such as is pleaded in this suit, if existing, must be notorious and certain, and have been uniform in its application and long established in practice. It must have been exhibited in the transactions of the individuals and corporations concerned, in conducting the business of shipments, transportation, and insurance, through the Mississippi valley. If the evidence had established that policies of insurance there did not designate fire among the risks assumed; that the words 'perils of the river' were used to include that risk, and losses by fire had been uniformly settled under that clause in the policy; that contracts of affreightment had been made and losses adjusted on the same conditions; that these usages had received the sanction of professional and judicial opinion in the States bordering that river—the cause of the appellants would have presented different considerations. The record contains nothing to exempt them from the legal rule of liability, as established by the common law. Seven of the bills of lading produced contain the exception, 'perils of the river and fire;' three others add to the perils of the river, 'unavoidable accidents;' and in these cases the Circuit Court exonerated the appellants from responsibility. The appellants further contend that the insurance company is not subrogated to the claims of the shippers of the cotton, whose losses have been adjusted on their policies of insurance; or, if this is so, still their suit should have been at law, in the name of the assured—the remedy being adequate and complete. In Randell v. Cochran, (1 Vesey, sen., 98,) the chancellor replied to a similar objection, 'that the plaintiff had the plainest equity that could be.' The person originally sustaining the loss was the owner; but, after satisfaction made to him, the insurer. And in White v. Dabinson, (14 Sim., 273,) an insurer enforced a lien on a judgment recovered by the assured for a loss, where the loss had been partially settled by him, on the policy. (Monticello v. Morrison, 17 How., 152.) These cases also show that an insurer may apply to equity whenever an impediment exists to the exercise of his legal remedy in the name of the assured. The bill discloses fifteen different contracts of affreightment, of a similar character, which have been adjusted by the appellees, and which form the subject of this suit. They have been joined in the same bill, and much inconvenience and vexation have been prevented. Without further inquiry, we think a sufficient ground for a resort to equity is disclosed. Decree affirmed.
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60.US.363
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That the Spanish grants of land in California were large, is no reason why this court should refuse to confirm them. A grant of a tract of land known by the name of El Cahon, lying near the mission of San Diego, and being that which the map attached to the official papers expresses, which map is of such a character that a surveyor could lay off the land, is good, and must be confirmed.
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The defendants in error filed their petition before the board of commissioners for ascertaining and settling private land claims in California, claiming 'a tract of land called El Cahon, containing eleven sitios de ganado mayor, situated in the county of San Diego, by virtue of a grant in fee made to their mother, Dona Maria Antonio Estudillo de Pedrorena, by Pio Pico, Governor of California, bearing date 23d of September, 1845, and approved by the territorial deputation on the 3d of October, 1845.' The only question arising in this case, which has not been disposed of in former decisions of this court, is the objection 'that the grant is void for uncertainty,' because it defines neither boundaries nor quantity. The authenticity of the grant and confirmation are proved, and do not appear to have been disputed before the commissioners. It is in evidence, also, that Dona Maria and her husband went into possession of the place called 'El Cahon' in the year 1845, and have made it 'the best-cultivated rancho in the country about San Diego.' It had formerly belonged to the mission of San Diego. The mission was in debt to the husband of Dona Maria, and agreed to transfer their right of occupancy on this rancho to her, in satisfaction of her husband's debt. Judicial possession was not delivered till September, 1846, after the establishment of the American authority, which was in July of that year. And whether void or valid, the espediente of possession made by the officer, Santiago E. Arguello, (who could not get the assistance of a surveyor,) seems to throw little light on the subject of precise boundary. But, under the circumstances, the want of such juridical delivery of possession will not affect the title of the petitioners, unless the grant be absolutely void for uncertainty. The description of the land granted is to be found in the following language in the patent or espediente: 'A tract of land known by the name of El Cahon, near the mission of San Diego.' And again: 'The land of which grant is made is that which the map (dise no) attached to the respective espediente expresses,' &c. 'The judge who may give the possession shall inform the Government of the number of sitios de ganado mayor it contains.' In construing grants of land in California, made under the Spanish or Mexican authorities, we must take into view the state of the country and the policy of the Government. The population of California before its transfer to the United States was very sparse, consisting chiefly of a few military posts and some inconsiderable villages. The millions of acres of land around them, with the exception of a mission or a rancho on some favored spot, were uninhabited and uncultivated. It was the interest and the policy of the King of Spain, and afterwards of the Mexican Government, to make liberal grants of these lands to those who would engage to colonize or settle upon them. Where land is plenty and labor scarce, pasturage and raising of cattle promised the greatest reward with the least labor. Hence, persons who established ranchos required and readily received grants of large tracts of country as a range for pasturage for their numerous herds. Under such circumstances, land was not estimated by acres or arpens. A square league, or 'sitio de ganado mayor,' appears to have been the only unit in estimating the superficies of land. Eleven of these leagues was the usual extent for a rancho grant. If more or less was intended in the grant, it was carefully stated. Surveying instruments or surveyors were seldom to be obtained in distant locations. The applicant for land usually accompanied his petition with a dise no, or map, showing the natural boundaries or monuments of the tract desired. These were usually rivers, creeks, rivulets, hills, and mountian ranges. The distances between these monuments were often estimated at about so many leagues, and fractions of this unit little regarded. To those who deal out land by the acre, such monuments as hills, mountains, &c., though fixed, would appear rather as vague and uncertain boundary lines. But where land had no value, and the unit of measurement was a league, such monuments were considered to be sufficiently certain. Since this country has become a part of the United States, these extensive rancho grants, which then had little value, have now become very large and very valuable estates. They have been denounced as 'enormous monopolies, princedoms,' &c., and this court have been urged to deny to the grantees what it is assumed the former Governments have too liberally and lavishly granted. This rhetoric might have a just influence, when urged to those who have a right to give or refuse. But the United States have bound themselves by a treaty to acknowledge and protect all bona fide titles granted by the previous Government; and this court have no discretion to enlarge or curtail such grants, to suit our own sense of property, or defeat just claims, however extensive, by stringent technical rules of construction, to which they were not originally subjected. The patent to the claimant's mother confers a title in fee to an estate 'known by the name of El Cahon,' or 'The Chest.' It describes it as lying 'near the mission of San Diego.' It therefore assumes, that there is an estate or rancho having such a name, and having some known boundaries. It is prima facie evidence of such a fact. Those who allege that it is void for uncertainty, must prove either that there are two estates called 'El Cahon,' near the mission of San Diego, to which the description in the patent would equally apply; in such case it would be void for ambiguity; or they must prove that there is no estate or property known by that name about San Diego. But there is not a particle of such evidence to be found on the record, nor was such a defence set up before the commissioners. For anything that appears, the 'El Cahon' was as well known as San Diego itself. But the description of the patent does not end here; it is further described as 'that which the dise no attached to the espediente expresses.' This map or survey is thus made a part of the patent for the purpose of description. It exhibits a circular valley surrounded by hills or mountains, except at a narrow outlet on the eastern boundary, where a stream of water passes out. The course of the stream through the valley is traced, as also are the roads. The position of corrals, ranchos, cottages, &c., are carefully noted; on the east, a hill or mountain bounds the valley called 'El Cahon;' on the west, 'Cerro del Porsuele' and 'Cerro de la Mesa;' the northern boundary, as a continuous circular hill or mountain without a name; the southern are broken hills, called 'Lomas Altas.' The cardinal points of the compass are given, and a scale of measurement, a single glance at which would show that the valley traced according to that scale would contain about ten leagues, or possibly eleven, the usual allowance for such estates. There is no evidence whatever, tending to show that, with the assistance of this map, a surveyor would find any difficulty in locating it according to its calls. In the cases of Fr emont and of Larkin, the grants were much more vague than the present, and the same remark which was made in the latter case will equally apply to this. 'No question appears to have been made as to the practicability of locating the grant in the tribunals below, nor do we see any ground upon which such a question could have been properly raised in the case.' The judgment is therefore affirmed. Mr. Justice DANIEL dissented.
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60.US.271
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A. court of equity will Aot entertain a bill, where the complainants seek to enforce a merely legal title to land; and in the present case, in the absence of allegations that the plaintiffs are seeking a partition, or a discovery, or an account, or to avoid a multiplicity of suits, the bill cannot be maintained.
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The appellants filed their bill to recover land within the district, in the possession of the defendants, and for an account of the rents, profits, and receipts, during the period of their occupancy. They allege that James Fletcher, their ancestor, died in 1804, leaving a valid will, by which he devised to his widow and three children the principal portion of his succession, and appointed the former the executrix. The property described in the bill had been sold in 1801, but the purchaser had not paid the price stipulated at this time. The testator directed, that if the purchaser should complete the purchase, the sum received should be put to interest, on good security, for the mother and children, until the children should attain the age of sixteen years, when the succession should be divided. In May, 1806, the executrix agreed with the purchaser to rescined the contract of sale, received a conveyance of his title to the heirs of Fletcher, and refunded to him the money he had paid, being near $4,000. In June, 1806, the executrix filed her petition in the Superior Court of the Orleans Territory, being the court of general law, equity, and probate jurisdiction, for the Territory, in which she declares the cancellation of the contract of sale aforesaid; and to enable her to refund the money, she had borrowed that sum from Daniel Clark; that the land was unproductive, and that she was unable to pay her debt. She prayed an order for the sale of the property, to provide for the education and maintenance of her minor children, and the discharge of her debt, and to carry the will of her husband into effect respecting the disposition of the remainder of the purchase-money. The court made the necessary order, to empower the executrix to sell and convey the lands for such price as she could obtain, and to receive the money therefor; also, to appropriate the sum necessary for the payment of her debt, and to put out the remainder at interest, as required by the will. Daniel Clark became the purchaser at private sale from the executrix, for the sum of $9,000, and received her conveyance. The appellants impeach this sale as unauthorized and illegal, and insist upon their title under the conveyance to them. The defendants claim by their answers as bona fide purchasers from persons deriving their title by valid conveyances in good faith from Daniel Clark, and affirm that the family of Fletcher left the United States in 1807, and enjoyed the benefit of the money paid to the executrix; that the lands have become valuable by their improvements, and that they, and the persons under whom they claim, have held the possession since 1806. The bill was dismissed by the Circuit Court, on the ground that the remedy at law is plain, adequate, and complete, and from this decree this appeal is prosecuted. The Supreme Court of Louisiana, in a contest between the appellants and other parties, for other lands, have decided that the executrix was not authorized to convey the shares of her minor children by private act. (Fletcher v. Cavelier, 4 La. R., 268; 10 La. R., 116 S. C.) But we are relieved from the duty of applying these decisions, or inquiring into the validity of the pleas of the appellees, by the opinion we have formed concerning the jurisdiction of the court of chancery over the cause. The sixteenth section of the judiciary act of 1789 declares, 'that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law.' The bill in this cause is, in substance and legal effect, an ejectment bill. The title appears by the bill to be merely legal; the evidence to support it appears from documents accessible to either party; and no particular circumstances are stated, showing the necessity of the courts interfering, either for preventing suits or other vexation, or for preventing an injustice, irremediable at law. In Welby v. Duke of Rutland, (6 Bro. P. C., cas. 575), it is stated, that the general practice of courts of equity, in not entertaining suits for establishing legal titles, is founded upon clear reasons; and the departing from that practice, where there is no necessity for so doing, would be subversive of the legal and constitutional distinctions between the different jurisdictions of law and equity; and though the admission of a party a suit is conclusive as to matters of fact, or may deprive him of the benefit of a privilege which, if insisted on, would exempt him from the jurisdiction of the court, yet no admission of parties can change the law, or give jurisdiction to a court in a cause of which it hath no jurisdiction. Agreeably hereto, the established and universal practice of courts of equity is to dismiss the plaintiff's bill, if it appears to be grounded on a title merely legal, and not cognizable by them, notwithstanding the defendant has answered the bill, and insisted on matter of title. In Foley v. Hill, (1 Phil., 399,) Lyndhurst, Lord Chancellor, dismissed a bill upon an appeal from the Vice Chancellor upon the same grounds. He said 'it was a point of great importance to the practice of the court.' The objection was not made in the pleadings nor presented in the decree of the Vice Chancellor. This decree was affirmed by the House of Lords. (2 H. L., cas. 28.) The practice of the courts of the United States corresponds with that of the chancery of Great Britain, except where it has been changed by rule, or is modified by local circumstances or local convenience. This court has denied relief in cases in equity where the remedy at law has been plain, adequate, and complete, though the question was not raised by the defendants in their pleadings, nor suggested by the counsel in their arguments. (2 Cr., 419; 7 Cr., 70, 89; 5 Pet., 496; 2 How., 383.) In Parsons v. Bedford, (3 Pet., 433,) the court insists on the necessity imposed on the Circuit Court in Louisiana, to maintain the distinction between the jurisdiction in which legal rights are to be ascertained, and that where equitable rights alone are recognised and equiable remedies administered. And the result of the argument is, that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury. The appellants contend, that upon the pleadings and evidence a proper case for the jurisdiction of chancery appears, and that the Circuit Court mero motu was not warranted in dismissing the bill: 1st. Because it is shown that in 1806 the children of Fletcher were minors, and they are authorized to call upon the defendants for an account as guardians. 2d. That the defendants being entitled to the estate of the executrix and widow, under her conveyance, the plaintiffs can maintain the bill for a partition. 3d. That the court of chancery is better fitted to take an account for rents, profits, and improvements, and may decide the question of title as incident to the account. 4th. That a multiplicity of suits will be avoided. There are precedents in which the right of an infant to treat a person who enters upon his estate with notice of his title, as a guardian or bailiff, and to exact an account in equity for the profits, for the whole period of his occupancy, is recognised. (Blomfield v. Eyre, 8 Beav., 250; Van Epps v. Van Deusen, 4 Paige, 64.) But in those cases the title must, if disputed, be established at law, or other grounds of jurisdiction must be shown. In the present case, the defendants have all entered upon the lands since the plaintiffs arrived at their majority. They are purchasers of adverse titles under which possession has been maintained for a long period. The bill does not recognise their title to any part of the land, and there has been no unity of possession; so that the bill cannot be maintained, either as a bill for an account on behalf of minors or for a partition. (Adams's Eq., sec. 229; 4 Rand. Va. R., 74, 493.) Nor can the court retain the bill, under an impression that a court of chancery is better adapted for the adjustment of the account for rents, profits, and improvements. The rule of the court is, that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession, which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated, to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at law has been allowed to file a bill for an account of rents and profits during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the interposition of a court of chancery to decide the title and to adjust the account. (Dormer v. Fortescue, 3 Atk., 124; Barnewell v. Barnewell, 3 Rid. P. C., 24.) Nor does the case show that a multiplicity of suits would be avoided, or that justice could be administered with less expense and vexation in this court than a court of law. Decree affirmed.
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60.US.318
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Where application for reinsurance, was made on Saturday, upon certain terms, which were declined, and other terms demanded, and on Monday these last-mentioned tefms were accepted by the applicant, and assented to by the president, but the policy not made out, because Monday was a holyday, the agreement to issue the policy must be considered as legally binding. ' The law of Massachusetts is, that although insurance companies can make valid policies only when attested by the signatures of the president and secretary, yet they can make agreements to issue policies in a less formal mode. By the commoh law, a promise for a valuable consideration to make a policy is not required to be in writing, and there is no statute in Massachusetts which is inconsistent with this doctrine. Where the power of .the president to make contracts for insurance is not denied in the answer, or made a point in issue in the court below, it is sufficient to bind the company if the other party shows that such had been the practice, and theteby an-idea held out to the public that the president had such power. It is not essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered.
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This is an appeal from a decree of the Circuit Court of the United States for the district of Massachusetts, in a suit in equity, to compel the specific performance of a contract to make reinsurance on the ship Great Republic. The Circuit Court made a decree in favor of the complainants, and the respondents appealed. It appears that the complainants, a corporation established in New York, having made insurance of the ship Great Republic to a large amount, authorized Charles W. Storey, at Boston, to apply for and obtain from either of the insurance companies there reinsurance to the extent of ten thousand dollars. Pursuant to this authority, on the 24th December, 1853, Mr. Storey made application to the president of the defendant corporation for reinsurance, at the same time presenting a paper, partly written and partly printed, as embodying the terms of the application. The paper was as follows: 'Reinsurance is wanted by the Union Mutual Insurance Company, New York, for $10,000, on the ship Great Republic, from December 24, 1853, at noon, for six months ensuing. 'This policy is to be subject to such risks, valuations, and condition, including risk of premium note, as are or may be taken by the said Union Mutual Insurance Company, and payment of loss to be made at the same time. 3 per cent. 'Binding, _____ _____, President. 'New York, December 24, 1853.' The president, after consultation with one of the directors of the company, declined to take the risk for a premium of three per cent., but offered to take it for three and a half per cent. Mr. Storey replied, that was more than he was authorized to give, and left the office. He immediately apprised his principals, by a telegraphic despatch, that the risk could be taken for three and a half per cent. for six months, or six per cent. a year. The reply, on the same day, was, 'Do it for six months, privilege of cancelling if sold.' This reply did not come to the hands of Mr. Storey until Monday, the 26th day of December, when he went to the office of the respondents, and found there the president of the company, but not any other person, as the day was generally observed, by merchants, bankers, and insurers, as a holyday, Christmas having fallen on Sunday. Mr. Storey informed the president he was willing to pay three and a half per cent. for the reinsurance described in the proposal, took a pen and altered the three per cent. to three and a half per cent., by adding 1/2 to 3 on the paper, and it is admitted by the answer that the president thereupon assented to the terms contained in the paper, but informed Mr. Storey that no business was done at the office on that day, and that the next day he would attend to it. The president then took the paper and retained it. To a special interrogatory contained in the bill, the defendants answer: 'That its president did assent to the terms and provisions in said paper, as the terms and provisions of a reinsurance to be completed and executed by this defendant, by the making and execution of a policy in due form, according to the requisitions of the laws of Massachusetts, and the by-laws of this defendant, but they were not assented to as a present insurance.' Upon these facts, we are of opinion there was an agreement to reinsure according to the terms contained in the proposal, concluded by and between Mr. Storey and the president at this interview on Monday the 26th of December. The paper contained every particular essential to a contract to make reinsurance. It ascertained the subject of insurance, the commencement and duration of the risk, the parties, the interest of the assured, and the premium; and for the special risks, the valuations, and conditions, it referred to the original contract of insurance made by the complainants, by reason of which they were seeking reinsurance. On Saturday, the president had offered to contract in accordance with the paper, saving a difference of one-half per cent. on the premium. It was argued that it could not be considered an acceptance, on Monday, of a continuing offer made on Saturday, because, when the complainants authorized Mr. Storey to give three and a half per cent., they at the same time imposed a new condition by the words, 'privilege of cancelling if sold.' But Mr. Storey testifies, and this is not denied by the answer, or by any witness, that when he made the application on Saturday, and before the president had named the premium which he was willing to take, the president said he supposed that they would have to cancel the policy, if the vessel should be sold within the time; and that he (Storey) assented thereto; and that at the interview on Monday, when this point was referred to, the president said the usage in Boston would settle it, and he would not put anything concerning it into the policy; and after some conversation concerning the usage, Mr. Storey agreed to take the policy without any mention of the privilege of cancellation. Under these circumstances, we do not perceive that the requirement of this privilege can be considered as at all varying, in the apprehension and meaning of the parties, the terms of the acceptance on Monday, from the terms of the proposal on Saturday. But whether, under all the circumstances, this should be deemed to have been a continuing offer, we do not think it necessary to determine; because, on Monday, either the president's offer of Saturday was accepted by Mr. Storey, and its acceptance made known to the president, or the proposal was renewed by Mr. Storey, and accepted by the president. The fact that others chose to abstain from business on that day did not prevent these parties from contracting, if they saw fit to do so; and when one of them either accepted a continuing offer, or renewed a proposal which was accepted by the other, they made a binding contract. Nor do we think the allegation of the answer, that the president informed Mr. Storey that no business was done in the office that day, but the next day he would attend to it, can reasonably be interpreted to mean that he had not made, or intended to make, a contract for a policy. Their fair meaning is, that though he had agreed to make the insurance, as the secretary and clerks were not there, and the books not accessible, any action on the agreement must be deferred to the next day. The words cannot be understood to mean, that he would on the next day attend to what he had already done; and he had already made a contract for reinsurance, to be executed on the next day, by issuing a policy in due form to carry that agreement into effect. On leaving the office of the defendants, Mr. Storey immediately informed the plaintiffs that he had effected this contract, and on the night of the same day the ship Great Republic was destroyed by fire, while lying at a wharf in the city of New York. On the twenty-seventh of December, the complainants tendered their note for the agreed premium, and demanded the policy of reinsurance. The defendants declined to make the policy. Several grounds have been insisted on in support of this refusal: The first is, that by force of a statute of the State of Massachusetts, (Rev. Stats., ch. 37, secs. 12, 13,) insurance corporations can make valid policies of insurance only by having them signed by the president and countersigned by the secretary. But we are of opinion that this statute only directs the formal mode of signing policies, and has no application to agreements to make insurance. Such we understand to be the view taken of this statute by the Supreme Court of Massachusetts. (New England Ins. Co. v. De Wolf, 8 Pick., 63; [Stat. 1817, ch. 120, sec. 1;] McCullock v. The Eagle Ins. Co., 1 Pick., 278; Thayer v. The Med. Mu. Ins. Co., 10 Pick., 326. See also Trustees v. Brooklyn Fire Ins. Co., 18 Barbour, 69; and Carpenter v. The Mu. Safety Ins. Co., 4 Sand. Ch. R., 408.) It is further insisted, that by the law merchant insurance can be effected only by a contract in writing. We do not doubt that the commercial law of all countries has treated of insurance as made in writing by an instrument, denominated by us a policy; and there may be provisions of positive law, in some countries, requiring an agreement to make a policy to be in writing. But there is no such statute of frauds in the State of Massachusetts. The common law must therefore determine the question; and under that law, a promise for a valuable consideration to make a policy of insurance is no more required to be in writing than a promise to execute and deliver a bond, or a bill of exchange, or a negotiable note. So it has been held by other courts, and, we think, on sound principles. (18 Barbour, 69; Hamilton v. The Lycoming Company, 5 Barr., 339. See also Sanford v. The Trust Fire Ins. Co., 11 Paige, 547.) The respondents' counsel had argued that their president had not authority to enter into an oral contract binding the company to make insurance. They admit it has been usual for the president to make such contracts; but they say that when he has done so, the policy was not issued until the next day, and no risk is understood to have commenced under such an undertaking until the policy issues. Whether a risk be commenced when the contract for insurance in made, or only when the policy issues, must depend on the terms of the contract. Where, as in the present case, there is an express contract to take the risk from a past day, there is no room for any understanding that it is not to commence until a future day. Such an understanding would be directly repugnant to the express terms of the contract. And if the defendants have held out their president as authorized to make oral contracts for insurance, no secret limitation of this authority would affect third persons, dealing with him in good faith and without notice of such limitation. Besides, the supposed limitation would be inconsistent with the authority itself. It is, in effect, that though the president is authorized to make oral promises to effect insurance, the company are at liberty to execute those promises, or to refuse to do so, at their option. The power of the president to enter into this contract to make insurance is nowhere denied in the answer. All that can bear on this subject occurs in certain statements concerning the usual course of business of the company. It seems to have been assumed by both parties, that whatever the president actually did in this transaction, he did for the company, and so as to render them responsible for his acts. And no question was raised on this point in the court below. Still it is incumbent on the complainants to offer competent and sufficient evidence of the authority of the president to bind the company, though less evidence may be reasonably sufficient when no issue concerning it is made on the record. We think such evidence is in the case. Mr. Storey deposes, that during the three years next preceding this transaction, he had effected upwards of three hundred contracts for reinsurance, with the presidents of ten different insurance companies of Boston; and that one, or possibly two, of these presidents usually signed an accepted application—the others all contracted orally. Considering that all the incorporated insurance companies in Boston have similar charters, and the same kind of officers to conduct their business, we think this is competent evidence, that presidents of such insurance companies in that city are generally held out to the public as having the authority to act in this manner. And upon a point not put in issue in the record, and on which no more than formal proof ought to be demanded, we hold this evidence sufficient. (Fleckner v. The Bank of the United States, 3. Whea., 360; Minor v. The Mechanics' Bank of Alexandria, 1 Peters, 46.) The fair inference is, that if the general authority of the president to contract for the corporation had been put in issue, it could have been shown, by the most plenary proof, that the presidents of insurance companies in the city of Boston are generally held out to the public by those companies as their agents, empowered to receive and assent, either orally or in writing, to proposals for insurance, and to bind their principals by such assent. Nor do we deem it essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered. The promise of the plaintiffs to give a note for the premium was a sufficient consideration for the promise to make a policy. It is admitted, that the usage is to deliver the note when the policy is handed to the assured. If the defendants had tendered the policy, we have no doubt an action for not delivering the premium note would have at once lain against the plaintiffs; and we think there was a mutual right on their part, after a tender of the note, to maintain an action for non-delivery of the policy. In Tayloe v. The Mutual Fire Ins. Co., (9 How., 390,) it was held that a bill in equity for the specific performance of a contract for a policy could be maintained. And it being admitted that in this case the defendants would be liable as for a total loss on the policy, if issued in conformity with the contract, no further question remained to be tried, and it was proper to decree the payment of the money, which would have been payable on the policy, if it had been issued. The decree of the Circuit Court is affirmed.
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60.US.241
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Neither rain, nor the darkness of the night, nor the absence of a light from a barge or sailing vessel, nor the fact that the steamer was well manned and furnished, and conducted with caution, will excuse a steamer for coming in collision with a barge or sailing vessel, where the barge or sailing vessel is at anchor or sail;. ing in a thoroughfare, but out of the usual track of the steam vessel. Therefore, where a collision took place between a steamer and a sailing vessel, the latter being out of the ship channel, and near an edge of shoals, the steamer must be responsible. The sailing vessel had no pilot, and did "not exhibit an efficient light. Although these circumstances did not exonerate the steamer, yet they make it necessary for this court to say that an obligation rests upon all vessels found in the avenues of commerce, to employ active diligence to avoid collisions, and that no inference can be drawn from the fact, that a vessel is not condemned for an omission of certain precautionary measures in one case, that another vessel will be excused, under other circumstances, for omissions of the same description. VOL. XIX. 16
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This is a case of collision, in which the steamship Roanoke is charged with having carelessly and negligently run into and afoul of the schooner Sprightling Sea, in the Elizabeth river, Virginia, in October, 1852. The facts disclosed by the pleadings and proofs are, that the schooner was ascending the river between 10 and 11 o'clock, P. M., and sailing at a rate of six miles per hour, with the aid of the tide. She was close-hauled, on her starboard tack, at a time when she descried the steamship descending the river, on her voyage to Richmond. The collision occurred on the eastern side of the river, 'out of the ship channel,' 'near an edge of shoals,' and 'within a length or two of them.' The object of those who managed the schooner was to avoid all danger, by leaving as large a space as possible for the steamer, whose lights had been seen. For this purpose, they approached as nearly as possible the eastern shore the usual shore, for vessels navigated as she was, to ascend the river. The schooner did not carry a light in her fore rigging; but one was exhibited from her breast-hook some time before and till the time of the collision; and the steamer was hailed, and told to keep off. The night was 'dark and rainy;' the steamer was not running at any time at an improper rate of speed. The officers of the steamship discovered the light on the schooner, and supposed it to belong 'to a vessel at anchor;' but they say the 'light disappeared, and the next time they saw it, it was near by, under the bow of the steamer.' The probability is, that the officers of the steamship were mistaken in their conclusions in reference to the course of the schooner, and under that mistaken impression went to the eastern side, and thus encountered her. No orders were given by the pilot in respect to the management of the steamer till the instant of the collision. This court has decided that neither rain, nor the darkness of the night, nor the absence of a light from a barge or sailing vessel, nor the fact that the steamer was well manned, and furnished, and conducted with caution, will excuse the steamer for coming in collision with the barge or sailing vessel, where the barge or sailing vessel is at anchor, or sailing in a thoroughfare, out of the usual track of the steam vessel. In the present instance, the steamer had notice that a vessel was before her, and was near her track, and, under the circumstances, she was bound to take efficient measures to avoid the schooner. The only facts we notice in the management of the schooner, which have occasioned a hesitation to affirm the decree, are the absence of a licensed pilot, and that the schooner did not exhibit an efficient light. The proofs in the case do not allow us to charge these omissions as indications of negligence; but, that the case may not be misunderstood, we assert that the ruling principle of the court is, that an obligation rests upon all vessels found in the avenues of commerce to employ active diligence to avoid collisions, and that no inference can be drawn from the fact, that a vessel is not condemned for an omission of certain precautionary measures in one case, that another vessel will be excused, under other circumstances, for omissions of the same description. The decree of the Circuit Court is affirmed.
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60.US.390
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The law of Louisiana imposes on the seller the obligation of warranting the thing sold against its hidden defects, which are those which could not be discovered by simple inspection; and the purchaser may retain the thing sold, and have an action for reduction of the price by reason of the difference in value between the thing as warranted and as it Vas in fact. Where a vessel was puichased, which was then partly laden as a general ship for an outward foreign voyage, and after she went to sea she was found to be unseaworthy, and had to return, the defects were hidden defects, under the above law. A vesstl is included within the terms of the law. The purchaser was not bound to renounce the vessel. This privilege is provided for in another and distinct article of the code. 'The contract must be governed by the laws of Louisiana, where it was made and performed. Such a sale is not governed" by 'the general commercial law, but by the civil code of Louisiana. Tnis case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana. The case is stated in the opinion of the court.
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The defendant in error brought his action in the Circuit Court of the United States for the eastern district of Louisiana, founded on the allegations, that he purchased at New Orleans, of the plaintiff in error and others, a vessel called the Ashland, for the sum of $27,500; that the vessel was then partly laden as a general ship for an outward foreign voyage, and it was agreed the purchaser should take on himself the expenses and advantages of that condition of the vessel; that, accordingly, the cargo was completed and the vessel went to sea, but was found to be unseaworthy, returned to New Orleans, the cargo was removed, and the hull examined and ascertained to be so decayed and rotten as to be of no value without very extensive and costly repairs. The court found these facts proved, and allowed to the plaintiff below damages equal to the difference between the price paid and the actual value of the vessel, adding the expenses of the vessel and cargo, incurred by the plaintiff below by reason of the sale. The petition averred a fraudulent concealment by the vendors of the defects of the vessel, but the court found this not proved. The law of Louisiana imposes on the seller the obligation of warranting the thing sold against its hidden defects. (Civ. Code, arts. 2,450, 2,451.) Hidden defects are those which could not be discovered by simple inspection. (Civ. Code, art. 2,497.) In case the seller desires to rescind the contract by reason of the breach of such a warranty, he may do so by an action of redhibition. But he may also retain the thing sold, and have an action for reduction of the price by reason of the difference in value between the thing as warranted and as it was in fact. (Civ. Code, arts. 2,519, 2,520.) And in this action only such a part of the price as will indemnify the vendee for the difference between the value of the thing as warranted and the thing actually sold, together with the expenses incurred on the thing, after deducting its fruits, can be recovered. (Civ. Code, arts. 2,522, 2,509.) The Circuit Court appears to have strictly pursued these rules in framing its judgment. But it is insisted the defects were apparent, and not hidden defects. We do not think so. Certainly they were discoverable, but not on what the code terms simple inspection. It was necessary to strip or bore the vessel, to ascertain the state of its frame; and this, we think, the vendee was not bound to do under the law of Louisiana. It is further argued that the implied warranty does not extend to the soundness of a vessel, because it is known to all, that, from the nature of the thing, it must decay, and the purchaser may be considered as knowing this, and making allowance therefor in the price. It is true that vessels must, after some time, decay; and it is also true that most subjects of sale must at some time become of less or of no value. But it is not true that vessels exposed to sale are generally unsound and unseaworthy. The buyer has no notice, from the nature of the article, that any particular vessel offered to be sold is unseaworthy by reason of the decayed state of that part of its frame which is concealed from sight. We do not perceive, therefore, why any different rule should be applicable to vessels, from that applied to most other subjects of sale. (See De Armas v. Gray et al., 10 Louis. R., 575.) Another objection is, that the plaintiff below did not offer to restore the vessel. But this proceeds on a misapprehension of the nature of the remedy. In an action of redhibition, such an offer would be necessary. Here, the contract is to stand unrescinded, and the buyer retains the thing, the price only being lessened as much as is necessary to do justice. It was also argued that this contract was not to be governed by the laws of Louisiana, but by the laws of New York, where the vendors resided. But the contract was made and performed in Louisiana, and must be governed by its laws. (Boyle v. Zacharie, 6 Peters, 635; Cox v. United States, 6 Peters, 172; Bell v. Bruin, 1 How., 169.) The counsel for the plaintiff in error also urged, that if the law of Louisiana ought to govern the contract, that law was to be found, not in the civil code of that State, but in the general commercial law of the country. Without pausing upon the difficulties which otherwise might attend this proposition, we think it sufficient to say, that we find the subject of sales, with the obligations which attend them, regulated by the civil code of Louisiana, and we see no sound reason why sales of vessels are not within those laws. The judgment of the Circuit Court is affirmed.
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60.US.343
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Where a claimant of land in California produced documentary evidence in his favor, copied from the archives in the office of the surveyor general and other original grants by Spanish officers, the presumption is in favor of the power of those officers to make the grants. If the power be denied, the burden of proof is upon the party who denies .it. The history bf California, with respect to the power of itsG overnors to grant land, examined. The boundaries of the tract of land, as decreed by the District Court, affirmed.
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This case originated before the commissioners for ascertaining and settling private land claims in California. Domingo and Vicente Peralta claimed as grantees and devisees of their father, Luis Peralta. The documentary evidence filed in support of the claim consists of a true copy from the archives in the office of the surveyor general of California, containing, so far as they are material in the present inquiry, the following averments: 1. The petition of Luis Peralta to the Governor for a grant of land, extending from the creek of San Leandro to a small mountain adjoining the sea beach, at the distance of four or five leagues, for the purpose of establishing a rancho, dated June 20, 1820. 2. The decree of Governor Sola, therein directing Captain Luis Antonio Arguello to appoint an officer to place the petitioner in possession of the lands petitioned for, dated August 3, 1820. 3. Order of Captain Arguello, dated August 10, 1820, detailing Lieut. Don Ignacio Martinez for that purpose. 4. The relinquishment of Father Narciso Duran, on behalf of the mission of San Jose, of any claim to the land, and reserving the privilege of cutting wood on the same, which, he says, should remain in common, dated August 16, 1820. 5. Under the same date, the return of Lieut. Martinez, upon the order to give the possession, describing the boundaries, &c. 6. The decree of the Governor, directing a portion of the lands assigned to Luis Peralta, by the foregoing act of possession, to be withdrawn, upon the reclamation of the mission of San Francisco, who claimed that the said portion of the lands was then in the occupancy of the mission as a sheep ranch. 7. The consent of Father Juan Cabot and Paloz Ordez, ministers of the mission, that the boundaries of the land solicited by Luis Peralta should be established at the rivulet, at the distance of three and a half to four leagues from the rancho-house of the mission. 8. The return of Maximo Martinez upon Governor Sola's second decree for the delivery of possession, filing the boundaries in accordance with the claim of the mission, at a rivulet which runs down from the mountains to the beach, where there is a grove of willows, and about a league and a half from the cerito (little mountain) of San Antonio, in the direction of San Leandro. 9. A document dated October, 1822, and signed Sola, setting out, that on that day was issued in favor of Sergeant Luis Peralta, by the Governor of the province, the certifying document for the land which has been granted him, as appears by the writ of possession which was given him by the lieutenant of his company, Don Ignacio Martinez, in conformity with the orders of the Government. 10. A letter from Luis Peralta, protesting against the claim of the mission, dated October 14th, 1820. 11. A representation from Captain Don Luis Arguello to the Governor, dated June 23, 1821, advocating the rights of Sergeant Peralta, in opposition to those of the mission, to the land in controversy; and, lastly, the description of the land returned by Luis Peralta, in obedience to the Government, of the 7th of October, 1827. The claimants gave in evidence, also, the original grant from Governor Sola to Luis Peralta, dated 18th of August, 1822; the petition of Luis Peralta to Governor Arguello, praying the restitution of the lands which had been taken from him on the demand of the mission; and the decree of Arguello, making such restitution, and directing him to be again put in possession by the same officer who had executed the former act of possession. To this order, Maximo Martinez made a return, duly executed, certifying that the grantee had been newly put in possession of the place called 'Cerito de St. Antonio, and the rivulet which crosses the place, to the coast, where is a rock looking to the north.' It was further shown, from the public records, that on the 9th of April, 1822, the civil and military authorities of California formally recognised and gave in their adhesion to the new Government of Mexico, according to the plan of Iguala and treaty of Cordova. Also, that in 1844, Ignacio Peralta, one of the heirs of Luis Peralta, petitioned the Government for a new title to the land claimed, in consequence of the original titlepapers having been lost or mislaid. The archives show, also, that on the 13th of February, 1844, an order was made by Micheltorena, that a title be issued. Of the same date, there is the usual formal document 'declaring DonLuis Peralta owner in fee of said land, which is bounded as follows: 'On the southeast by the creek of San Leandro; on the northwest by the creek of Los Ceritos de San Antonio, (the small hills of San Antonio;) on the southwest by the sea; and on the northeast by the tops of hills range, without prohibiting the inhabitants of Contra Costa from cutting wood for their own use, they not to sell the same.' This document contains an order that 'this espediente be transmitted to the dupartmental assembly for their approval,' but nothing further appears to have been done, nor is the signature of Micheltorena attached to the record. The authenticity of these documents is admitted. The objections urged against their sufficiency to establish the claim are: first, that the officers had no power to make grants of land; and, second, that the northern boundary of the land described does not extend beyond a certain creek or stream, known by the name of San Antonio. This would exclude about one half of the claim. We are of opinion that neither of these objections is supported by the evidence in the case. We have frequently decided that 'the public acts of public officers, purporting to be exercised in an official capacity, and by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified.' To adopt a contrary rule would lead to infinite confusion and uncertainty of titles. The presumption arising from the grant itself makes it prima facie evidence of the power of the officer making it, and throws the burden of proof on the party denying it. The general powers of the Governors and other Spanish officers to grant lands within the colonies in full property, and without restriction as to quantity, and in reward for important services, were fully considered by this court in the case of United States v. Clarke, (8 Peters, 436.) The appellants, on whom the burden of proof is cast, to show want of authority, have produced no evidence, either documentary or historical, that the Spanish officers who usually acted as Governors of the distant provinces of California were restricted in their powers, and could not make grants of land. The necessity for the exercise of such a power by the Governors, if the Crown desired these distant provinces to be settled, is the greater, because of their distance from the source of power. By the royal order of August 22, 1776, the northern and northwestern provinces of Mexico were formed into a new and distinct organization, called the Internal Provinces of New Spain. This organization included California. It conferred ample powers, civil, military, and political, on the Commandant General. The archives of the former Government also show, that as early as 1786, the Governors of California had authority from the Commandant General to make grants, limiting the number of sitios which should be granted. In 1792, California was annexed to the viceroyalty of Mexico, and so continued till the Spanish authority ceased. An attempt to trace the obscure history of the various decrees, orders, and regulations of the Spanish Government on this subject, would be tedious and unprofitable. It is sufficient for the case, that the archives of the Mexican Government show that such power has been exercised by the Governors under Spain, and continued to be so exercised under Mexico; and that such grants, made by the Spanish officers, have been confirmed and held valid by the Mexican authorities. Sola styles himself political and military Governor of California. He continued to exercise the same powers after his adhesion to the Mexican Government, under the provisions of the plan of Iguala, and the twelfth section of the treaty of Cordova. The grant in fee, given by Sola, was after the revolution. The Government of Mexico, since that time, has always respected and confirmed such concessions, when any equitable or inchoate right, followed by possession and cultivation, had been conferred by the Governors under Spain. The case of Arguello (18 How., 540) was that of a permit by Governor Sola, afterwards confirmed by the Mexican Government and by this court. The plaintiff in error has not been able to produce anything from historical documents or the archives of California, tending to show a want of power in the respective officers in this case. On the contrary, the presumption of law is confirmed by both. The order of Micheltorena, in 1844, for the granting the new title to Peralta, is itself evidence of the usage and custom, and that the acts of Sola and Arguello were considered valid, and that the title, whether equitable or legal, conferred to them, should be respected and confirmed by the Government. As the validity of the petitioner's title has been assailed on the ground of want of authority alone, it is unnecessary to notice more particularly the various documents exhibited in support of it. The grant by Sola of a portion of the tract of which Peralta had been originally put in possession, is a complete grant in fee for that portion. The restoration by Arguello of the original boundaries, by decree and act of the public officer, may not have the character of a complete grant; but it is of little importance to the decision of the case, whether it conferred only an inchoate or equitable title, connected with an undisputed possession of thirty years, and confirmed again in 1844, by the order of the Governor of California; its claim for protection under the treaty with Mexico cannot be doubted, notwithstanding its want of confirmation by the departmental assembly. The only remaining question is the position of the northern boundary line. Peralta's original petition, in June, 1820, described the land desired, as beginning at a creek called San Leandro, 'and from this to a white hill, adjoining the sea beach, in the same direction, and along the coast four or five leagues.' The return of Ignacio Martinez, the officer who executed the order for delivery of possession on the 16th of August, 1820, describes 'the boundaries which separate the land of Peralta, to be marked out as follows: The deep creek called San Leandro, and at a distance from this, (say five leagues,) there are two small mountains, (cerritos;) the first is close to the beach; next to it follows the San Antonio, serving as boundaries, the rivulet which issues from the mountain range, and runs along the foot of said cerrito of San Antonio, and at the entrance of a little gulch there is a rock elevating itself in the form of a monument, and looking towards the north.' This is the description of the northern boundary. It refers to stable monuments—two hills, a rivulet passing at their foot, and a monumental rock. In other documents, Peralta speaks of this line 'as the dividing boundary with my neighbor, Francisco Castro.' Again, in the return of Ignacio Martinez to the order of the Governor, Arguello, in 1823, to redeliver the possession to Peralta, up to his original boundary, he describes this within boundary by the same monument, 'the cerrito San Antonio, the arroyito or rivulet which crosses the place to the coast, where is a rock looking to the north.' Lastly, the title of confirmation by Micheltorena in 1844, as quoted above, though not in the very words of the above documents, clearly describes the same monuments. These hills, rivulet, and rock, are well-known monuments, and their position is satisfactorily proved. The testimony of the opinions of witnesses who have but lately arrived in the country, who are ignorant of the language and traditions of the neighborhood, and who are all interested in defeating the claim of the petitioners, can have little weight against the knowledge of others who were present when the lines were established, some thirty years ago, and have known these boundaries till the present time. The decree of the Circuit Court is therefore affirmed. Mr. Justice DANIEL dissented.
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547.US.451
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The Racketeer Influenced and Corrupt Organizations Act (RICO) prohibits certain conduct involving a “pattern of racketeering activity,” 18 U. S. C. §1962, and makes a private right of action available to “[a]ny person injured in his business or property by reason of a violation” of RICO’s substantive restrictions, §1964(c), provided that the alleged violation was the proximate cause of the injury, Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268. Respondent Ideal Steel Supply Corporation (Ideal) has stores in Queens and the Bronx. Petitioner National Steel Supply, Inc. (National), owned by petitioners Joseph and Vincent Anza, has stores in the same locations and is Ideal’s principal competitor. Ideal filed suit in the District Court, claiming that National failed to charge New York’s sales tax to cash-paying customers, allowing it to reduce its prices without affecting its profit margin; and that it submitted fraudulent state tax returns to conceal the conduct, which involved committing mail and wire fraud, both forms of “racketeering activity” under RICO. Ideal alleged that the Anzas violated §1962(c), which forbids conducting or participating in the conduct of an enterprise’s affairs through a pattern of racketeering activity. It also claimed that all the petitioners violated §1962(a)—which makes it unlawful for a person “to use or invest” income derived from a pattern of racketeering activity in an enterprise engaged in or affecting interstate or foreign commerce—when they used funds generated by the fraudulent tax scheme to open National’s Bronx location, causing Ideal to lose business and market share. The District Court granted petitioners’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), concluding that Ideal had not shown reliance on petitioners’ misrepresentations, as required in RICO mail and wire fraud claims. Vacating, the Second Circuit held, with regard to the §1962(c) claim, that a complaint alleging a pattern of racketeering activity designed to give a defendant a competitive advantage adequately pleaded probable cause even where the scheme depended on fraudulent communications made to a third party; and held that Ideal adequately pleaded its §1962(a) claim by alleging injury resulting from petitioners’ use and investment of racketeering proceeds. Held: 1. Ideal cannot maintain its §1962(c) claim. Under Holmes, proximate cause for §1964(c) purposes requires “some direct relation between the injury asserted and the injurious conduct alleged.” 503 U. S., at 268. The direct victim of the alleged RICO violation is the State of New York, not Ideal. Ideal’s claim is too attenuated to satisfy Holmes’ requirement of directness. This result is confirmed by the directness requirement’s underlying premises, one of which is the difficulty that can arise when a court attempts to ascertain the damages caused by some remote action. Ideal claims lost sales because of National’s decreased prices, but National could have lowered prices for reasons unrelated to the asserted tax fraud, and Ideal’s lost sales could have resulted from other factors as well. The attenuated connection between Ideal’s injury and the Anzas’ injurious conduct thus implicates fundamental concerns expressed in Holmes. Further illustrating the absence of proximate cause is the speculative nature of the proceedings that would follow if Ideal were permitted to maintain its claim. A court would have to calculate the portion of National’s price drop attributable to the pattern of racketeering activity and then calculate the portion of lost sales attributable to the relevant part of the price drop, but Holmes’ proximate causation element was meant to prevent such intricate, uncertain inquiries from overrunning RICO litigation. A direct causal connection is especially warranted where the immediate victims can be expected to vindicate the laws by pursuing their own claims. Contrary to the Second Circuit’s rationale, a RICO plaintiff cannot circumvent the proximate-cause requirement simply by claiming that the defendant’s aim was to increase market share at a competitor’s expense. Because Ideal has not satisfied that requirement, this Court has no occasion to address the substantial question whether a plaintiff asserting a RICO claim predicated on mail or wire fraud must show that it relied on the defendant’s misrepresentations. Pp. 4–9. 2. The Second Circuit’s judgment with respect to Ideal’s §1962(a) claim is vacated so that court can determine on remand whether petitioners’ alleged §1962(a) violation proximately caused Ideal’s asserted injuries. Pp. 9–10. 373 F. 3d 251, reversed in part, vacated in part, and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Souter, Ginsburg, and Alito, JJ., joined, and in which Thomas, J., joined as to Part III. Scalia, J., filed a concurring opinion. Thomas, J., and Breyer, J., filed opinions concurring in part and dissenting in part.
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The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1961–1968 (2000 ed. and Supp. III), prohibits certain conduct involving a “pattern of racketeering activity.” §1962 (2000 ed.). One of RICO’s enforcement mechanisms is a private right of action, available to “[a]ny person injured in his business or property by reason of a violation” of the Act’s substantive restrictions. §1964(c). In Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992), this Court held that a plaintiff may sue under §1964(c) only if the alleged RICO violation was the proximate cause of the plaintiff’s injury. The instant case requires us to apply the principles discussed in Holmes to a dispute between two competing businesses. I Because this case arises from a motion to dismiss, we accept as true the factual allegations in the amended complaint. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993). Respondent Ideal Steel Supply Corporation (Ideal) sells steel mill products along with related supplies and services. It operates two store locations in New York, one in Queens and the other in the Bronx. Petitioner National Steel Supply, Inc. (National), owned by petitioners Joseph and Vincent Anza, is Ideal’s principal competitor. National offers a similar array of products and services, and it, too, operates one store in Queens and one in the Bronx. Ideal sued petitioners in the United States District Court for the Southern District of New York. It claimed petitioners were engaged in an unlawful racketeering scheme aimed at “gain[ing] sales and market share at Ideal’s expense.” App. 7. According to Ideal, National adopted a practice of failing to charge the requisite New York sales tax to cash-paying customers, even when conducting transactions that were not exempt from sales tax under state law. This practice allowed National to reduce its prices without affecting its profit margin. Petitioners allegedly submitted fraudulent tax returns to the New York State Department of Taxation and Finance in an effort to conceal their conduct. Ideal’s amended complaint contains, as relevant here, two RICO claims. The claims assert that petitioners, by submitting the fraudulent tax returns, committed various acts of mail fraud (when they sent the returns by mail) and wire fraud (when they sent them electronically). See 18 U. S. C. §§1341, 1343 (2000 ed., Supp. III). Mail fraud and wire fraud are forms of “racketeering activity” for purposes of RICO. §1961(1)(B). Petitioners’ conduct allegedly constituted a “pattern of racketeering activity,” see §1961(5) (2000 ed.), because the fraudulent returns were submitted on an ongoing and regular basis. Ideal asserts in its first cause of action that Joseph and Vincent Anza violated §1962(c), which makes it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” The complaint states that the Anzas’ goal, which they achieved, was to give National a competitive advantage over Ideal. The second cause of action is asserted against all three petitioners. It alleges a violation of §1962(a), which makes it unlawful for any person who has received income derived from a pattern of racketeering activity “to use or invest” that income “in acquisition of any interest in, or the establishment or operation of,” an enterprise engaged in or affecting interstate or foreign commerce. As described in the complaint, petitioners used funds generated by their fraudulent tax scheme to open National’s Bronx location. The opening of this new facility caused Ideal to lose “significant business and market share.” App. 18. Petitioners moved to dismiss Ideal’s complaint under Federal Rules of Civil Procedure 12(b)(6) and 9(b). The District Court granted the Rule 12(b)(6) motion, holding that the complaint failed to state a claim upon which relief could be granted. The court began from the proposition that to assert a RICO claim predicated on mail fraud or wire fraud, a plaintiff must have relied on the defendant’s misrepresentations. Ideal not having alleged that it relied on petitioners’ false tax returns, the court concluded Ideal could not go forward with its RICO claims. Ideal appealed, and the Court of Appeals for the Second Circuit vacated the District Court’s judgment. 373 F. 3d 251 (2004). Addressing Ideal’s §1962(c) claim, the court held that where a complaint alleges a pattern of racketeering activity “that was intended to and did give the defendant a competitive advantage over the plaintiff, the complaint adequately pleads proximate cause, and the plaintiff has standing to pursue a civil RICO claim.” Id., at 263. This is the case, the court explained, “even where the scheme depended on fraudulent communications directed to and relied on by a third party rather than the plaintiff.” Ibid. The court reached the same conclusion with respect to Ideal’s §1962(a) claim. It reasoned that Ideal adequately pleaded its claim because it alleged an injury by reason of petitioners’ use and investment of racketeering proceeds, “as distinct from injury traceable simply to the predicate acts of racketeering alone or to the conduct of the business of the enterprise.” Id., at 264. We granted certiorari. 546 U. S. __ (2005). II Our analysis begins—and, as will become evident, largely ends—with Holmes. That case arose from a complaint filed by the Securities Investor Protection Corporation (SIPC), a private corporation with a duty to reimburse the customers of registered broker-dealers who became unable to meet their financial obligations. SIPC claimed that the petitioner, Robert Holmes, conspired with others to manipulate stock prices. When the market detected the fraud, the share prices plummeted, and the “decline caused [two] broker-dealers’ financial difficulties resulting in their eventual liquidation and SIPC’s advance of nearly $13 million to cover their customers’ claims.” 503 U. S., at 262–263. SIPC sued on several theories, including that Holmes participated in the conduct of an enterprise’s affairs through a pattern of racketeering activity in violation of §1962(c) and conspired to do so in violation of §1962(d). The Court held that SIPC could not maintain its RICO claims against Holmes for his alleged role in the scheme. The decision relied on a careful interpretation of §1964(c), which provides a civil cause of action to persons injured “by reason of” a defendant’s RICO violation. The Court recognized the phrase “by reason of” could be read broadly to require merely that the claimed violation was a “but for” cause of the plaintiff’s injury. Id., at 265–266. It rejected this reading, however, noting the “unlikelihood that Congress meant to allow all factually injured plaintiffs to recover.” Id., at 266. Proper interpretation of §1964(c) required consideration of the statutory history, which revealed that “Congress modeled §1964(c) on the civil-action provision of the federal antitrust laws, §4 of the Clayton Act.” Id., at 267. In Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 (1983), the Court held that “a plaintiff’s right to sue under §4 required a showing that the defendant’s violation not only was a ‘but for’ cause of his injury, but was the proximate cause as well.” Holmes, supra, at 268 (citing Associated Gen. Contractors, supra, at 534). This reasoning, the Court noted in Holmes, “applies just as readily to §1964(c).” 503 U. S., at 268. The Holmes Court turned to the common-law foundations of the proximate-cause requirement, and specifically the “demand for some direct relation between the injury asserted and the injurious conduct alleged.” Ibid. It concluded that even if SIPC were subrogated to the rights of certain aggrieved customers, the RICO claims could not satisfy this requirement of directness. The deficiency, the Court explained, was that “the link is too remote between the stock manipulation alleged and the customers’ harm, being purely contingent on the harm suffered by the broker-dealers.” Id., at 271. Applying the principles of Holmes to the present case, we conclude Ideal cannot maintain its claim based on §1962(c). Section 1962(c), as noted above, forbids conducting or participating in the conduct of an enterprise’s affairs through a pattern of racketeering activity. The Court has indicated the compensable injury flowing from a violation of that provision “necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern, for the essence of the violation is the commission of those acts in connection with the conduct of an enterprise.” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 497 (1985). Ideal’s theory is that Joseph and Vincent Anza harmed it by defrauding the New York tax authority and using the proceeds from the fraud to offer lower prices designed to attract more customers. The RICO violation alleged by Ideal is that the Anzas conducted National’s affairs through a pattern of mail fraud and wire fraud. The direct victim of this conduct was the State of New York, not Ideal. It was the State that was being defrauded and the State that lost tax revenue as a result. The proper referent of the proximate-cause analysis is an alleged practice of conducting National’s business through a pattern of defrauding the State. To be sure, Ideal asserts it suffered its own harms when the Anzas failed to charge customers for the applicable sales tax. The cause of Ideal’s asserted harms, however, is a set of actions (offering lower prices) entirely distinct from the alleged RICO violation (defrauding the State). The attenuation between the plaintiff’s harms and the claimed RICO violation arises from a different source in this case than in Holmes, where the alleged violations were linked to the asserted harms only through the broker-dealers’ inability to meet their financial obligations. Nevertheless, the absence of proximate causation is equally clear in both cases. This conclusion is confirmed by considering the directness requirement’s underlying premises. See 503 U. S., at 269–270. One motivating principle is the difficulty that can arise when a court attempts to ascertain the damages caused by some remote action. See id., at 269 (“[T]he less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors”). The instant case is illustrative. The injury Ideal alleges is its own loss of sales resulting from National’s decreased prices for cash-paying customers. National, however, could have lowered its prices for any number of reasons unconnected to the asserted pattern of fraud. It may have received a cash inflow from some other source or concluded that the additional sales would justify a smaller profit margin. Its lowering of prices in no sense required it to defraud the state tax authority. Likewise, the fact that a company commits tax fraud does not mean the company will lower its prices; the additional cash could go anywhere from asset acquisition to research and development to dividend payouts. Cf. id., at 271 (“The broker-dealers simply cannot pay their bills, and only that intervening insolvency connects the conspirators’ acts to the losses suffered by the nonpurchasing customers and general creditors”). There is, in addition, a second discontinuity between the RICO violation and the asserted injury. Ideal’s lost sales could have resulted from factors other than petitioners’ alleged acts of fraud. Businesses lose and gain customers for many reasons, and it would require a complex assessment to establish what portion of Ideal’s lost sales were the product of National’s decreased prices. Cf. id., at 272–273 (“If the nonpurchasing customers were allowed to sue, the district court would first need to determine the extent to which their inability to collect from the broker-dealers was the result of the alleged conspiracy to manipulate, as opposed to, say, the broker-dealers’ poor business practices or their failures to anticipate developments in the financial markets”). The attenuated connection between Ideal’s injury and the Anzas’ injurious conduct thus implicates fundamental concerns expressed in Holmes. Notwithstanding the lack of any appreciable risk of duplicative recoveries, which is another consideration relevant to the proximate-cause inquiry, see id., at 269, these concerns help to illustrate why Ideal’s alleged injury was not the direct result of a RICO violation. Further illustrating this point is the speculative nature of the proceedings that would follow if Ideal were permitted to maintain its claim. A court considering the claim would need to begin by calculating the portion of National’s price drop attributable to the alleged pattern of racketeering activity. It next would have to calculate the portion of Ideal’s lost sales attributable to the relevant part of the price drop. The element of proximate causation recognized in Holmes is meant to prevent these types of intricate, uncertain inquiries from overrunning RICO litigation. It has particular resonance when applied to claims brought by economic competitors, which, if left unchecked, could blur the line between RICO and the antitrust laws. The requirement of a direct causal connection is especially warranted where the immediate victims of an alleged RICO violation can be expected to vindicate the laws by pursuing their own claims. See id., at 269–270 (“[D]irectly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely”). Again, the instant case is instructive. Ideal accuses the Anzas of defrauding the State of New York out of a substantial amount of money. If the allegations are true, the State can be expected to pursue appropriate remedies. The adjudication of the State’s claims, moreover, would be relatively straightforward; while it may be difficult to determine facts such as the number of sales Ideal lost due to National’s tax practices, it is considerably easier to make the initial calculation of how much tax revenue the Anzas withheld from the State. There is no need to broaden the universe of actionable harms to permit RICO suits by parties who have been injured only indirectly. The Court of Appeals reached a contrary conclusion, apparently reasoning that because the Anzas allegedly sought to gain a competitive advantage over Ideal, it is immaterial whether they took an indirect route to accomplish their goal. See 373 F. 3d, at 263. This rationale does not accord with Holmes. A RICO plaintiff cannot circumvent the proximate-cause requirement simply by claiming that the defendant’s aim was to increase market share at a competitor’s expense. See Associated Gen. Contractors, 459 U. S., at 537 (“We are also satisfied that an allegation of improper motive . . . is not a panacea that will enable any complaint to withstand a motion to dismiss”). When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff’s injuries. In the instant case, the answer is no. We hold that Ideal’s §1962(c) claim does not satisfy the requirement of proximate causation. Petitioners alternatively ask us to hold, in line with the District Court’s decision granting petitioners’ motion to dismiss, that a plaintiff may not assert a RICO claim predicated on mail fraud or wire fraud unless it demonstrates it relied on the defendant’s misrepresentations. They argue that RICO’s private right of action must be interpreted in light of common-law principles, and that at common law a fraud action requires the plaintiff to prove reliance. Because Ideal has not satisfied the proximate-cause requirement articulated in Holmes, we have no occasion to address the substantial question whether a showing of reliance is required. Cf. 503 U. S., at 275–276. III The amended complaint also asserts a RICO claim based on a violation of §1962(a). The claim alleges petitioners’ tax scheme provided them with funds to open a new store in the Bronx, which attracted customers who otherwise would have purchased from Ideal. In this Court petitioners contend that the proximate-cause analysis should function identically for purposes of Ideal’s §1962(c) claim and its §1962(a) claim. (Petitioners also contend that “a civil RICO plaintiff does not plead an injury proximately caused by a violation of §1962(a) merely by alleging that a corporate defendant reinvested profits back into itself,” Brief for Petitioners 20, n. 5, but this argument has not been developed, and we decline to address it.) It is true that private actions for violations of §1962(a), like actions for violations of §1962(c), must be asserted under §1964(c). It likewise is true that a claim is cognizable under §1964(c) only if the defendant’s alleged violation proximately caused the plaintiff’s injury. The proximate-cause inquiry, however, requires careful consideration of the “relation between the injury asserted and the injurious conduct alleged.” Holmes, supra, at 268. Because §1962(c) and §1962(a) set forth distinct prohibitions, it is at least debatable whether Ideal’s two claims should be analyzed in an identical fashion for proximate-cause purposes. The Court of Appeals held that Ideal adequately pleaded its §1962(a) claim, see 373 F. 3d, at 264, but the court did not address proximate causation. We decline to consider Ideal’s §1962(a) claim without the benefit of the Court of Appeals’ analysis, particularly given that the parties have devoted nearly all their attention in this Court to the §1962(c) claim. We therefore vacate the Court of Appeals’ judgment with respect to Ideal’s §1962(a) claim. On remand, the court should determine whether petitioners’ alleged violation of §1962(a) proximately caused the injuries Ideal asserts. * * * The judgment of the Court of Appeals is reversed in part and vacated in part. The case is remanded for further proceedings consistent with this opinion. It is so ordered.
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546.US.500
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Title VII of the Civil Rights Act of 1964 makes it unlawful for “an employer … to discriminate against any [employee] with respect to … sex,” 42 U. S. C. §2000e–2(a)(1), and defines “employer” as “a person … who has fifteen or more employees,” §2000e(b). The Act’s jurisdictional provision empowers federal courts to adjudicate civil actions “brought under” Title VII. §2000e–5(f)(3). Title VII actions also fit within the Judicial Code’s grant of subject-matter jurisdiction to federal courts over actions “arising under” federal law. 28 U. S. C. §1331. At the time Title VII was enacted, §1331 contained a $10,000 amount-in-controversy threshold, which left Title VII claims below that amount uncovered. Section 2000e–5(f)(3) assured that the amount-in-controversy limitation would not impede a Title VII complainant’s access to a federal forum. Since 1980, when Congress amended §1331 to eliminate the amount-in-controversy threshold, §2000e–5(f)(3) has served simply to underscore Congress’ intention to provide a federal forum for Title VII claims. Because Congress has also authorized federal courts to exercise “supplemental” jurisdiction over state-law claims linked to a federal claim, 28 U. S. C. §1367, Title VII plaintiffs may pursue complete relief in federal court. The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised at any stage in the litigation, even after trial and the entry of judgment, Rule 12(h)(3). See Kontrick v. Ryan, 540 U. S. 443, 455. By contrast, the objection that a complaint “fail[s] to state a claim upon which relief can be granted,” Rule 12(b)(6), endures only up to, not beyond, trial on the merits, Rule 12(h)(2). Petitioner Arbaugh sued her former employer, respondent Y&H Corporation, in Federal District Court, charging sexual harassment in violation of Title VII and asserting related state-law claims. The case was tried to a jury, which returned a verdict for Arbaugh. After the court entered judgment on that verdict, Y&H moved to dismiss the entire action for want of federal subject-matter jurisdiction, asserting, for the first time, that it had fewer than 15 employees on its payroll and therefore was not amenable to suit under Title VII. Although recognizing the unfairness and waste of judicial resources that granting the motion would entail, the District Court, citing Federal Rule 12(h)(3), considered itself obliged to do so because it believed the 15-or-more-employees requirement to be jurisdictional. It therefore vacated its prior judgment and dismissed Arbaugh’s Title VII claim with prejudice and her state-law claims without prejudice. The Fifth Circuit affirmed based on its precedent holding that unless the employee-numerosity requirement is met, federal-court subject-matter jurisdiction does not exist. Held: Title VII’s numerical threshold does not circumscribe federal-court subject-matter jurisdiction. Instead, the employee-numerosity requirement relates to the substantive adequacy of Arbaugh’s Title VII claim, and therefore could not be raised defensively late in the lawsuit, i.e., after Y&H had failed to assert the objection prior to the close of trial on the merits. The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U. S. C. §1331, which provides for “[f]ederal-question” jurisdiction, and §1332, which provides for “[d]iversity of citizenship” jurisdiction. A plaintiff properly invokes §1331 jurisdiction when she pleads a colorable claim “arising under” the Federal Constitution or laws. See Bell v. Hood, 327 U. S. 678, 681–685. She invokes §1332 jurisdiction when she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000. See §1332(a). Arbaugh invoked federal-question jurisdiction under §1331, but her case “aris[es]” under a federal law, Title VII, that specifies, as a prerequisite to its application, the existence of a particular fact, i.e., 15 or more employees. The Court resolves the question whether that fact is “jurisdictional” or relates to the “merits” of a Title VII claim mindful of the consequences of typing the 15-employee threshold a determinant of subject-matter jurisdiction, rather than an element of Arbaugh’s claim for relief. First, “subject-matter jurisdiction, because it involves the court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U. S. 625, 630. Moreover, courts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party. Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 583. Nothing in Title VII’s text indicates that Congress intended courts, on their own motion, to assure that the employee-numerosity requirement is met. Second, in some instances, if subject-matter jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and resolve the dispute on her own. If satisfaction of an essential element of a claim is at issue, however, the jury is the proper trier of contested facts. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 150–151. Third, when a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety. Thus, the trial court below dismissed, along with the Title VII claim, pendent state-law claims fully tried by a jury and determined on the merits. In contrast, when a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction, pursuant to §1367, over pendent state-law claims. While Congress could make the employee-numerosity requirement “jurisdictional” if it so chose, neither §1331 nor Title VII’s jurisdictional provision, 42 U. S. C. §2000e–5(f)(3), specifies any threshold ingredient akin to 28 U. S. C. §1332’s monetary floor. Instead, the 15-employee threshold appears in a separate provision that “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 394. Given the unfairness and waste of judicial resources entailed in tying the employee-numerosity requirement to subject-matter jurisdiction, the sounder course is to refrain from constricting §1331 or §2000e–5(f)(3), and to leave the ball in Congress’ court. If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. Applying that readily administrable bright line here yields the holding that Title VII’s 15-employee threshold is an element of a plaintiff’s claim for relief, not a jurisdictional issue. Pp. 8–15. 380 F. 3d 219, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
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This case concerns the distinction between two sometimes confused or conflated concepts: federal-court “subject-matter” jurisdiction over a controversy; and the essential ingredients of a federal claim for relief. Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer . . . to discriminate,” inter alia, on the basis of sex. 42 U. S. C. §2000e–2(a)(1). The Act’s jurisdictional provision empowers federal courts to adjudicate civil actions “brought under” Title VII. §2000e–5(f)(3). Covering a broader field, the Judicial Code gives federal courts subject-matter jurisdiction over all civil actions “arising under” the laws of the United States. 28 U. S. C. §1331. Title VII actions fit that description. In a provision defining 13 terms used in Title VII, 42 U. S. C. §2000e, Congress limited the definition of “employer” to include only those having “fifteen or more employees,” §2000e(b). The question here presented is whether the numerical qualification contained in Title VII’s definition of “employer” affects federal-court subject-matter jurisdiction or, instead, delineates a substantive ingredient of a Title VII claim for relief. The question arises in this context. Jenifer Arbaugh, plaintiff below, petitioner here, brought a Title VII action in federal court against her former employer, defendant-respondent Y&H Corporation (hereinafter Y&H), charging sexual harassment. The case was tried to a jury, which returned a verdict for Arbaugh in the total amount of $40,000. Two weeks after the trial court entered judgment on the jury verdict, Y&H moved to dismiss the entire action for want of federal subject-matter jurisdiction. For the first time in the litigation, Y&H asserted that it had fewer than 15 employees on its payroll and therefore was not amenable to suit under Title VII. Although recognizing that it was “unfair and a waste of judicial resources” to grant the motion to dismiss, App. to Pet. for Cert. 47, the trial court considered itself obliged to do so because it believed that the 15-or-more-employees requirement was jurisdictional. We reject that categorization and hold that the numerical threshold does not circumscribe federal-court subject-matter jurisdiction. Instead, the employee-numerosity requirement relates to the substantive adequacy of Arbaugh’s Title VII claim, and therefore could not be raised defensively late in the lawsuit, i.e., after Y&H had failed to assert the objection prior to the close of trial on the merits. I We set out below statutory provisions and rules that bear on this case. Title VII makes it “an unlawful employment practice for an employer … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). To spare very small businesses from Title VII liability, Congress provided that: “[t]he term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person … .” §2000e(b).[Footnote 1] This employee-numerosity requirement[Footnote 2] appears in a section headed “Definitions,” §2000e, which also prescribes the meaning, for Title VII purposes, of 12 other terms used in the Act.[Footnote 3] Congress has broadly authorized the federal courts to exercise subject-matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. Title VII surely is a “la[w] of the United States.” Ibid. In 1964, however, when Title VII was enacted, §1331’s umbrella provision for federal-question jurisdiction contained an amount-in-controversy limitation: Claims could not be brought under §1331 unless the amount in controversy exceeded $10,000. See §1331(a) (1964 ed.). Title VII, framed in that light, assured that the amount-in-controversy limitation would not impede an employment-discrimination complainant’s access to a federal forum. The Act thus contains its own jurisdiction-conferring provision, which reads: “Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter.” 42 U. S. C. §2000e–5(f)(3).[Footnote 4] Congress amended 28 U. S. C. §1331 in 1980 to eliminate the amount-in-controversy threshold. See Federal Question Jurisdictional Amendments Act of 1980, §2, 94 Stat. 2369. Since that time, Title VII’s own jurisdictional provision, 42 U. S. C. §2000e–5(f)(3), has served simply to underscore Congress’ intention to provide a federal forum for the adjudication of Title VII claims. See Brief for United States as Amicus Curiae 13; Tr. of Oral Arg. 4. We note, too, that, under 28 U. S. C. §1367, federal courts may exercise “supplemental” jurisdiction over state-law claims linked to a claim based on federal law.[Footnote 5] Plaintiffs suing under Title VII may avail themselves of the opportunity §1367 provides to pursue complete relief in a federal-court lawsuit. Arbaugh did so in the instant case by adding to her federal complaint pendent claims arising under state law that would not independently qualify for federal-court adjudication. The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment. Rule 12(h)(3) instructs: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” See Kontrick v. Ryan, 540 U. S. 443, 455 (2004). By contrast, the objection that a complaint “fail[s] to state a claim upon which relief can be granted,” Rule 12(b)(6), may not be asserted post trial. Under Rule 12(h)(2), that objection endures up to, but not beyond, trial on the merits: “A defense of failure to state a claim upon which relief can be granted … may be made in any pleading … or by motion for judgment on the pleadings, or at the trial on the merits.” Cf. Kontrick, 540 U. S., at 459. II From May 2000 through February 2001, Jenifer Arbaugh worked as a bartender and waitress at the Moonlight Cafe, a New Orleans restaurant owned and operated by Y&H. Arbaugh alleged that Yalcin Hatipoglu, one of the company’s owners, sexually harassed her and precipitated her constructive discharge.[Footnote 6] In November 2001, Arbaugh filed suit against Y&H in the United States District Court for the Eastern District of Louisiana. Her complaint asserted claims under Title VII and Louisiana law. App. to Pet. for Cert. 1–2. Arbaugh’s pleadings alleged that her federal claim “ar[o]se under Title VII” and that the Federal District Court had jurisdiction over this claim under §1331 plus supplemental jurisdiction over her state-law claims under §1367. Record in No. 01–3376 (ED La.), Doc. 3, p. 1 (Amended Complaint). Y&H’s responsive pleadings admitted Arbaugh’s “jurisdictional” allegations but denied her contentions on the merits. Id., Doc. 4, p. 1 (Answer to Complaint). The pretrial order submitted and signed by the parties, and later subscribed by the presiding judge, reiterated that the court was “vested with jurisdiction over [Arbaugh’s Title VII claim] pursuant to 28 U. S. C. §1331,” and “ha[d] supplemental jurisdiction over [her] state law claims pursuant to 28 U. S. C. §1367.” Id., Doc. 19, p. 2. The order listed “Uncontested Material Facts,” including: “Plaintiff was employed as a waitress/bartender at the Moonlight for Defendants from May, 2000 through February 10, 2001 when she terminated her employment with the company.” Id., p. 3. It did not list among “Contested Issues of Fact” or “Contested Legal Issues” the question whether Y&H had the requisite number of employees under 42 U. S. C. §2000e(b). Record, Doc. 19, pp. 4–5. Nor was the issue raised at any other point pretrial or at trial. The parties consented to trial before a Magistrate Judge. See 28 U. S. C. §636(c). After a two-day trial, the jury found that Arbaugh had been sexually harassed and constructively discharged in violation of Title VII and Louisiana antidiscrimination law. The verdict awarded Arbaugh $5,000 in backpay, $5,000 in compensatory damages, and $30,000 in punitive damages. The trial court entered judgment for Arbaugh on November 5, 2002. Two weeks later, Y&H filed a motion under Federal Rule 12(h)(3) to dismiss Arbaugh’s complaint for lack of subject-matter jurisdiction. Record, Doc. 44. As sole ground for the motion, Y&H alleged, for the first time in the proceedings, that it “did not employ fifteen or more employees [during the relevant period] and thus is not an employer for Title VII purposes.” Id., p. 2 (Memorandum in Support of Rule 12(h)(3) Motion to Dismiss for Lack of Subject Matter Jurisdiction). The trial court commented that “[i]t is unfair and a waste of judicial resources to permit [Y&H] to admit Arbaugh’s allegations of jurisdiction, try the case for two days and then assert a lack of subject matter jurisdiction in response to an adverse jury verdict.” App. to Pet. for Cert. 47. Nevertheless, reciting the text of Rule 12(h)(3), see supra, at 5, the trial court allowed Y&H to plead that it did not qualify as an “employer” under Title VII’s definition of that term. App. to Pet. for Cert. 47–48; see supra, at 3. Discovery ensued. The dispute over the employee count turned on the employment status of Y&H’s eight drivers, engaged to make deliveries for the restaurant, and the company’s four owners (the Moonlight Cafe’s two managers and their shareholder spouses). As the trial court noted, “[i]f either the delivery drivers or the four owners are counted with the persons shown on the payroll journals, then Y&H employed fifteen or more persons for the requisite time.” App. to Pet. for Cert. 27. After reviewing the parties’ submissions, however, the trial court concluded that neither the delivery drivers nor the owner-managers nor their shareholder spouses qualified as “employees” for Title VII purposes. Id., at 32–43. Based on that determination, the trial court vacated its prior judgment in favor of Arbaugh, dismissed her Title VII claim with prejudice, and her state-law claims without prejudice. Id., at 23. The Court of Appeals for the Fifth Circuit affirmed. 380 F. 3d 219 (2004). Bound by its prior decisions, the Court of Appeals held that a defendant’s “failure to qualify as an ‘employer’ under Title VII deprives a district court of subject matter jurisdiction.” Id., at 224 (citing, e.g., Dumas v. Mt. Vernon, 612 F. 2d 974, 980 (1980)). Dismissal for want of subject-matter jurisdiction was proper, the Court of Appeals ruled, for the record warranted the conclusion that Y&H’s delivery drivers, its owner-managers, and their shareholder wives were not “employees” for Title VII purposes, 380 F. 3d, at 225–230, and it was undisputed that Y&H “did not employ the requisite 15 employees without the inclusion of” those persons, id., at 231. We granted certiorari, 544 U. S. 1031 (2005), to resolve conflicting opinions in Courts of Appeals on the question whether Title VII’s employee-numerosity requirement, 42 U. S. C. §2000e(b), is jurisdictional or simply an element of a plaintiff’s claim for relief. Compare, e.g., 380 F. 3d, at 223–225 (Title VII’s employee-numerosity requirement is jurisdictional), and Armbruster v. Quinn, 711 F. 2d 1332, 1335 (CA6 1983) (same), with, e.g., Da Silva v. Kinsho International Corp., 229 F. 3d 358, 361–366 (CA2 2000) (Title VII’s employee-numerosity requirement is not jurisdictional); Nesbit v. Gears Unlimited, Inc., 347 F. 3d 72, 76–83 (CA3 2003) (same); EEOC v. St. Francis Xavier Parochial School, 117 F. 3d 621, 623–624 (CADC 1997) (Americans with Disabilities Act’s employee-numerosity requirement, 42 U. S. C. §12111(5)(A), resembling Title VII’s requirement, is not jurisdictional). III “Jurisdiction,” this Court has observed, “is a word of many, too many, meanings.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 90 (1998) (internal quotation marks omitted). This Court, no less than other courts, has sometimes been profligate in its use of the term. For example, this Court and others have occasionally described a nonextendable time limit as “mandatory and jurisdictional.” See, e.g., United States v. Robinson, 361 U. S. 220, 229 (1960). But in recent decisions, we have clarified that time prescriptions, however emphatic, “are not properly typed ‘jurisdictional.’ ” Scarborough v. Principi, 541 U. S. 401, 414 (2004); accord Eberhart v. United States, 546 U. S. ___, ___ (2005) (per curiam) (slip op., at 4–7); Kontrick, 540 U. S., at 454–455. See also Carlisle v. United States, 517 U. S. 416, 434–435 (1996) (Ginsburg, J., concurring). The dispute now before us concerns the proper classification of Title VII’s statutory limitation of covered employers to those with 15 or more employees. If the limitation conditions subject-matter jurisdiction, as the lower courts held it did, then a conclusion that Y&H had fewer than 15 employees would require erasure of the judgment for Arbaugh entered on the jury verdict. But if the lower courts’ subject-matter jurisdiction characterization is incorrect, and the issue, instead, concerns the merits of Arbaugh’s case, then Y&H raised the employee-numerosity requirement too late. Its pretrial stipulations, see supra, at 6, and its failure to speak to the issue prior to the conclusion of the trial on the merits, see Fed. Rule Civ. Proc. 12(h)(2), supra, at 5, would preclude vacation of the $40,000 judgment in Arbaugh’s favor. On the subject-matter jurisdiction/ingredient-of-claim-for-relief dichotomy, this Court and others have been less than meticulous. “Subject matter jurisdiction in federal-question cases is sometimes erroneously conflated with a plaintiff’s need and ability to prove the defendant bound by the federal law asserted as the predicate for relief—a merits-related determination.” 2 J. Moore et al., Moore’s Federal Practice §12.30[1], p. 12–36.1 (3d ed. 2005) (hereinafter Moore). Judicial opinions, the Second Circuit incisively observed, “often obscure the issue by stating that the court is dismissing ‘for lack of jurisdiction’ when some threshold fact has not been established, without explicitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.” Da Silva, 229 F. 3d, at 361. We have described such unrefined dispositions as “drive-by jurisdictional rulings” that should be accorded “no precedential effect” on the question whether the federal court had authority to adjudicate the claim in suit. Steel Co., 523 U. S., at 91. Cases of this genre include Hishon v. King & Spalding, 467 U. S. 69 (1984), and EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991). Hishon involved a Title VII claim brought by a lawyer denied partnership in a law firm. The District Court ruled that Title VII did not apply to the selection of partners and dismissed the case for lack of subject-matter jurisdiction. The Court of Appeals affirmed that judgment. We noted that the District Court’s reasoning “ma[de] clear that it dismissed petitioner’s complaint on the ground that her allegations did not state a claim cognizable under Title VII.” 467 U. S., at 73, n. 2. Disagreeing with the lower courts, we held that Title VII applies to partnership decisions. Id., at 73–78. That holding, we said, “ma[de] it unnecessary to consider the wisdom of the District Court’s invocation of Rule 12(b)(1), as opposed to Rule 12(b)(6).” Id., at 73, n. 2. The former Rule concerns subject-matter jurisdiction, the latter, “failure to state a claim upon which relief can be granted.” See supra, at 5. Our opinion in Hishon thus raised, but did not decide, the question whether subject-matter jurisdiction was the proper rubric for the District Court’s decisions.[Footnote 7] In Arabian American Oil Co., we affirmed the judgment of the courts below that Title VII, as then composed, did not apply to a suit by a United States employee working abroad for a United States employer.[Footnote 8] That judgment had been placed under a lack of subject-matter jurisdiction label. We agreed with the lower courts’ view of the limited geographical reach of the statute. 499 U. S., at 246–247. En passant, we copied the petitioners’ characterizations of terms included in Title VII’s “Definitions” section, 42 U. S. C. §2000e, as “jurisdictional.” See 499 U. S., at 249, 251, 253. But our decision did not turn on that characterization, and the parties did not cross swords over it. See Steel Co., 523 U. S., at 91 (declining to follow a decision treating an issue as jurisdictional because nothing “turned upon whether [the issue] was technically jurisdictional” in that case). In short, we were not prompted in Arabian American Oil Co. to home in on whether the dismissal had been properly based on the absence of subject-matter jurisdiction rather than on the plaintiff’s failure to state a claim. 499 U. S., at 247.[Footnote 9] The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U. S. C. §§1331 and 1332. Section 1331 provides for “[f]ederal-question” jurisdiction, §1332 for “[d]iversity of citizenship” jurisdiction. A plaintiff properly invokes §1331 jurisdiction when she pleads a colorable claim “arising under” the Constitution or laws of the United States. See Bell v. Hood, 327 U. S. 678, 681–685 (1946).[Footnote 10] She invokes §1332 jurisdiction when she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000. See §1332(a). Arbaugh invoked federal-question jurisdiction under §1331, but her case “aris[es]” under a federal law, Title VII, that specifies, as a prerequisite to its application, the existence of a particular fact, i.e., 15 or more employees. We resolve the question whether that fact is “jurisdictional” or relates to the “merits” of a Title VII claim mindful of the consequences of typing the 15-employee threshold a determinant of subject-matter jurisdiction, rather than an element of Arbaugh’s claim for relief. First, “subject-matter jurisdiction, because it involves the court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U. S. 625, 630 (2002). Moreover, courts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party. Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 583 (1999). Nothing in the text of Title VII indicates that Congress intended courts, on their own motion, to assure that the employee-numerosity requirement is met. Second, in some instances, if subject-matter jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and resolve the dispute on her own. See 5B C. Wright & A. Miller, Federal Practice and Procedure §1350, pp. 243–249 (3d ed. 2004); 2 Moore §12.30[3], pp. 12–37 to 12–38. If satisfaction of an essential element of a claim for relief is at issue, however, the jury is the proper trier of contested facts. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 150–151 (2000). Third, when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety. See 16 Moore §106.66[1], pp. 106–88 to 106–89. Thus in the instant case, the trial court dismissed, along with the Title VII claim, pendent state-law claims, see supra, at 4, fully tried by a jury and determined on the merits, see App. to Pet. for Cert. 23, 47. In contrast, when a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U. S. C. §1367, over pendent state-law claims. See 16 Moore §106.66[1], pp. 106–86 to 106–89. Of course, Congress could make the employee-numerosity requirement “jurisdictional,” just as it has made an amount-in-controversy threshold an ingredient of subject-matter jurisdiction in delineating diversity-of-citizenship jurisdiction under 28 U. S. C. §1332. But neither §1331, nor Title VII’s jurisdictional provision, 42 U. S. C. §2000e–5(f)(3) (authorizing jurisdiction over actions “brought under” Title VII), specifies any threshold ingredient akin to 28 U. S. C. §1332’s monetary floor. Instead, the 15-employee threshold appears in a separate provision that “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 394 (1982). Given the “unfair[ness]” and “waste of judicial resources,” App. to Pet. for Cert. 47, entailed in tying the employee-numerosity requirement to subject-matter jurisdiction, we think it the sounder course to refrain from constricting §1331 or Title VII’s jurisdictional provision, 42 U. S. C. §2000e–5(f)(3), and to leave the ball in Congress’ court. If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional,[Footnote 11] then courts and litigants will be duly instructed and will not be left to wrestle with the issue. See Da Silva, 229 F. 3d, at 361 (“Whether a disputed matter concerns jurisdiction or the merits (or occasionally both) is sometimes a close question.”). But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. Applying that readily administrable bright line to this case, we hold that the threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue. * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 The same provision further states that the term “employer” does not include the United States, corporations wholly owned by the United States, Indian Tribes, certain departments and agencies of the District of Columbia, or tax-exempt “bona fide private membership club[s]” (other than labor organizations). §2000e(b). Footnote 2 Congress originally prescribed a 25-or-more-employee threshold, Civil Rights Act of 1964, §701, 78 Stat. 253, but lowered the minimum number of employees to 15 in the Equal Employment Opportunity Act of 1972, §2, 86 Stat. 103. Footnote 3 The other terms defined in §2000e are: “person,” “employment agency,” “labor organization,” “employee,” “commerce,” “industry affecting commerce,” “State,” “religion,” “because of sex,” “complaining party,” “demonstrates,” and “respondent.” Footnote 4 Title VII contains a separate jurisdictional provision, 42 U. S. C. §2000e–6(b), authorizing suits by the Government to enjoin “pattern or practice” discrimination. Footnote 5 Section 1367(a) states: “Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.” Footnote 6 See Pennsylvania State Police v. Suders, 542 U. S. 129, 147 (2004) (constructive discharge compensable under Title VII includes an employee’s departure due to sexual harassment that renders “working conditions so intolerable that a reasonable person would have felt compelled to resign”). Footnote 7 Y&H features Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202 (1997), as supportive of the jurisdictional character of the employee-numerosity requirement. Brief for Respondent 8–10. Y&H urges that the Court must have considered the requirement jurisdictional, for Walters held definitively that, under the correct legal standard, the defendant had more than 15 employees. If the requirement had been seen as a merits issue, Y&H contends, the Court would have remanded the employee count for determination by the trier of fact. But the parties in Walters apparently stipulated to all relevant facts, leaving nothing for a fact trier to resolve on remand. Cf. 519 U. S., at 211–212. Footnote 8 Congress subsequently amended Title VII to extend protection to United States citizens working overseas. See Civil Rights Act of 1991, §109(a), 105 Stat. 1077, codified at 42 U. S. C. §2000e(f) (“With respect to employment in a foreign country,” the term “employee” “includes an individual who is a citizen of the United States.”). Footnote 9 In EEOC v. Commercial Office Products Co., 486 U. S. 107 (1988), also featured by Y&H, see Brief for Respondent 12, a plurality of this Court noted that “[r]eactivation of state proceedings after the conclusion of federal proceedings serves [a] useful function,” in part because “Title VII does not give the EEOC jurisdiction to enforce the Act against employers of fewer than 15 employees.” 486 U. S., at 119, n. 5. That fleeting footnote addressed the relative administrative provinces of the EEOC and state agencies. It did not speak of federal-court subject-matter jurisdiction, which was not at issue in the case. Footnote 10 A claim invoking federal-question jurisdiction under 28 U. S. C. §1331, Bell held, may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is “immaterial and made solely for the purpose of obtaining jurisdiction” or is “wholly insubstantial and frivolous.” 327 U. S., at 682–683; see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998). Arbaugh’s case surely does not belong in that category. Footnote 11 Congress has exercised its prerogative to restrict the subject-matter jurisdiction of federal district courts based on a wide variety of factors, some of them also relevant to the merits of a case. Certain statutes confer subject-matter jurisdiction only for actions brought by specific plaintiffs, e.g., 28 U. S. C. §1345 (United States and its agencies and officers), 49 U. S. C. §24301(l)(2) (Amtrak), or for claims against particular defendants, e.g., 7 U. S. C. §2707(e)(3) (persons subject to orders of the Egg Board); 28 U. S. C. §1348 (national banking associations), or for actions in which the amount in controversy exceeds, e.g., 16 U. S. C. §814, or falls below, e.g., 22 U. S. C. §6713(a)(1)(B), 28 U. S. C. §1346(a)(2), a stated amount. Other jurisdiction-conferring provisions describe particular types of claims. See, e.g., §1339 (“any civil action arising under any Act of Congress relating to the postal service”); §1347 (“any civil action commenced by any tenant in common or joint tenant for the partition of lands where the United States is one of the tenants in common or joint tenants”). In a few instances, Congress has enacted a separate provision that expressly restricts application of a jurisdiction-conferring statute. See, e.g., Weinberger v. Salfi, 422 U. S. 749, 756–761 (1975) (42 U. S. C. §405(h) bars §1331 jurisdiction over suits to recover Social Security benefits).
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547.US.268
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Federal Medicaid law requires participating States to “ascertain the legal liability of third parties … to pay for [an individual benefits recipient’s] care and services available under the [State’s] plan,” 42 U. S. C. §1396a(a)(25)(A); to “seek reimbursement for [medical] assistance to the extent of such legal liability,” 1396a(a)(25)(B); to enact “laws under which, to the extent that payment has been made … for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services,” §1396a(a)(25)(H); to “provide that, as a condition of [Medicaid] eligibility … , the individual is required … (A) to assign the State any rights … to payment for medical care from any third party; … (B) to cooperate with the State … in obtaining [such] payments … and … (C) … in identifying, and providing information to assist the State in pursuing, any third party who may be liable,” 1396k(a)(1). Finally, “any amount collected by the State under an assignment made” as described above “shall be retained by the State … to reimburse it for [Medicaid] payments made on behalf of” the recipient. §1396k(b). “[T]he remainder of such amount collected shall be paid” to the recipient. Ibid. Acting pursuant to its understanding of these provisions, Arkansas passed laws under which, when a state Medicaid recipient obtains a tort settlement following payment of medical costs on her behalf, a lien is automatically imposed on the settlement in an amount equal to Medicaid’s costs. When that amount exceeds the portion of the settlement representing medical costs, satisfaction of the State’s lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings. Following respondent Ahlborn’s car accident with allegedly negligent third parties, petitioner Arkansas Department of Health Services (ADHS) determined that Ahlborn was eligible for Medicaid and paid providers $215,645.30 on her behalf. She filed a state-court suit against the alleged tortfeasors seeking damages for past medical costs and for other items including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled out of court for $550,000, which was not allocated between categories of damages. ADHS did not participate or ask to participate in the settlement negotiations, and did not seek to reopen the judgment after the case was dismissed, but did intervene in the suit and assert a lien against the settlement proceeds for the full amount it had paid for Ahlborn’s care. She filed this action in Federal District Court seeking a declaration that the State’s lien violated federal law insofar as its satisfaction would require depletion of compensation for her injuries other than past medical expenses. The parties stipulated, inter alia, that the settlement amounted to approximately one-sixth of the reasonable value of Ahlborn’s claim and that, if her construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made. In granting ADHS summary judgment, the court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned ADHS her right to recover the full amount of Medicaid’s payments for her benefit. The Eighth Circuit reversed, holding that ADHS was entitled only to that portion of the settlement that represented payments for medical care. Held: Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn’s settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so. Arkansas’ third-party liability provisions are unenforceable insofar as they compel a different conclusion. Pp. 9–23. (a) Arkansas’ statute finds no support in the federal third-party liability provisions. That ADHS cannot claim more than the portion of Ahlborn’s settlement that represents medical expenses is suggested by §1396k(a)(1)(A), which requires that Medicaid recipients, as a condition of eligibility, “assign the State any rights … to payment for medical care from any third party” (emphasis added), not their rights to payment for, e.g., lost wages. The other statutory language ADHS relies on is not to the contrary, but reinforces the assignment provision’s implicit limitation. First, statutory context shows that §1396a(a)(25)(B)’s requirement that States “seek reimbursement for [medical] assistance to the extent of such legal liability” refers to “the legal liability of third parties … to pay for care and services available under the plan,” §1396a(a)(25)(A) (emphases added). Here, because the tortfeasors accepted liability for only one-sixth of Ahlborn’s overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses, the relevant “liability” extends no further than that amount. Second, §1396a(a)(25)(H)’s requirement that the State enact laws giving it the right to recover from liable third parties “to the extent [it made] payment … for medical assistance for health care items or services furnished to an individual” does not limit the State’s recovery only by the amount it paid out on the recipient’s behalf, since the rest of the provision makes clear that the State must be assigned “the rights of [the recipient] to payment by any other party for such health care items or services.” (Emphasis added.) Finally, §1396k(b)’s requirement that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from “any amount collected by the State under an assignment” before “the remainder of such amount collected” is remitted to the recipient does not show that the State must be paid in full from any settlement. Rather, because the State’s assigned rights extend only to recovery of medical payments, what §1396k(b) requires is that the State be paid first out of any damages for medical care before the recipient can recover any of her own medical costs. Pp. 9–13. (b) Arkansas’ statute squarely conflicts with the federal Medicaid law’s anti-lien provision, §1396p(a)(1), which prohibits States from imposing liens “against the property of any individual prior to his death on account of medical assistance paid … on his behalf under the State plan.” Even if the State’s lien is assumed to be consistent with federal law insofar as it encumbers proceeds designated as medical payments, the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement. ADHS’ attempt to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn’s “property,” but as the State’s, fails for two reasons. First, because the settlement is not “received from a third party,” as required by the state statute, until Ahlborn’s chose in action has been reduced to proceeds in her possession, the assertion that any of the proceeds belonged to the State all along lacks merit. Second, the State’s argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory lien on those proceeds: ADHS would not need a lien on its own property. Pp. 13–17. (c) The Court rejects as unpersuasive ADHS’ and the United States’ arguments that a rule permitting a lien on more than medical damages ought to apply here either because Ahlborn breached her duty to “cooperate” with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. As §1396k(a)(1)(C) demonstrates, the duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. In any event, the aspersions cast upon Ahlborn are entirely unsupported; all the record reveals is that ADHS neither asked to be nor was involved in the settlement negotiations. Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here. Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision. Pp. 17–19. (d) Also rejected is ADHS’ contention that the Eighth Circuit accorded insufficient weight to two decisions by the Departmental Appeals Board (Board) of the federal Department of Health and Human Services (HHS) rejecting appeals by two States from denial of reimbursement for costs they paid on behalf of Medicaid recipients who had settled tort claims. Although HHS generally has broad regulatory authority in the Medicaid area, the Court declines to treat the Board’s reasoning in those cases as controlling because they address a different question from the one posed here, make no mention of the anti-lien provision, and rest on a questionable construction of the federal third-party liability provisions. Pp. 19–23. 397 F. 3d 620, affirmed. Stevens, J., delivered the opinion for a unanimous Court.
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When a Medicaid recipient in Arkansas obtains a tort settlement following payment of medical costs on her behalf by Medicaid, Arkansas law automatically imposes a lien on the settlement in an amount equal to Medicaid’s costs. When that amount exceeds the portion of the settlement that represents medical costs, satisfaction of the State’s lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs—like pain and suffering, lost wages, and loss of future earnings. The Court of Appeals for the Eighth Circuit held that this statutory lien contravened federal law and was therefore unenforceable. Ahlborn v. Arkansas Dept. of Human Servs., 397 F. 3d 620 (2005). Other courts have upheld similar lien provisions. See, e.g., Houghton v. Dept. of Health, 2002 UT 101, 57 P. 3d 1067; Wilson v. Washington, 142 Wash. 2d 40, 10 P. 3d 1061 (2000) (en banc). We granted certiorari to resolve the conflict, 545 U. S. ___ (2005), and now affirm. I On January 2, 1996, respondent Heidi Ahlborn, then a 19-year-old college student and aspiring teacher, suffered severe and permanent injuries as a result of a car accident. She was left brain damaged, unable to complete her college education, and incapable of pursuing her chosen career. Although she possessed a claim of uncertain value against the alleged tortfeasors who caused her injuries, Ahlborn’s liquid assets were insufficient to pay for her medical care. Petitioner Arkansas Department of Health Services (ADHS) accordingly determined that she was eligible for medical assistance and paid providers $215,645.30 on her behalf under the State’s Medicaid plan. ADHS required Ahlborn to complete a questionnaire about her accident, and sent her attorney periodic letters advising him about Medicaid outlays. These letters noted that, under Arkansas law, ADHS had a claim to reimbursement from “any settlement, judgment, or award” obtained by Ahlborn from “a third party who may be liable for” her injuries, and that no settlement “shall be satisfied without first giving [ADHS] notice and a reasonable opportunity to establish its interest.”[Footnote 1] ADHS has never asserted, however, that Ahlborn has a duty to reimburse it out of any other subsequently acquired assets or earnings. On April 11, 1997, Ahlborn filed suit against two alleged tortfeasors in Arkansas state court seeking compensation for the injuries she sustained in the January 1996 car accident. She claimed damages not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental anguish; past loss of earnings and working time; and permanent impairment of the ability to earn in the future. ADHS was neither named as a party nor formally notified of the suit. Ahlborn’s counsel did, however, keep ADHS informed of details concerning insurance coverage as they became known during the litigation. In February 1998, ADHS intervened in Ahlborn’s lawsuit to assert a lien on the proceeds of any third-party recovery Ahlborn might obtain. In October 1998, ADHS asked Ahlborn’s counsel to notify the agency if there was a hearing in the case. No hearing apparently occurred, and the case was settled out of court sometime in 2002 for a total of $550,000. The parties did not allocate the settlement between categories of damages. ADHS did not participate or ask to participate in settlement negotiations. Nor did it seek to reopen the judgment after the case had been dismissed. ADHS did, however, assert a lien against the settlement proceeds in the amount of $215,645.30—the total cost of payments made by ADHS for Ahlborn’s care. On September 30, 2002, Ahlborn filed this action in the United States District Court for the Eastern District of Arkansas seeking a declaration that the lien violated the federal Medicaid laws insofar as its satisfaction would require depletion of compensation for injuries other than past medical expenses. To facilitate the District Court’s resolution of the legal questions presented, the parties stipulated that Ahlborn’s entire claim was reasonably valued at $3,040,708.18; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahlborn’s construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made. See App. 17–20. Ruling on cross-motions for summary judgment, the District Court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned to ADHS her right to any recovery from the third-party tortfeasors to the full extent of Medicaid’s payments for her benefit. Accordingly, ADHS was entitled to a lien in the amount of $215,645.30. The Eighth Circuit reversed. It held that ADHS was entitled only to that portion of the judgment that represented payments for medical care. For the reasons that follow, we affirm. II The crux of the parties’ dispute lies in their competing constructions of the federal Medicaid laws. The Medicaid program, which provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs, was launched in 1965 with the enactment of Title XIX of the Social Security Act (SSA), as added 79 Stat. 343, 42 U. S. C. §1396 et seq. (2000 ed. and Supp. III). Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS).[Footnote 2] States are not required to participate in Medicaid, but all of them do. The program is a cooperative one; the Federal Government pays between 50% and 83% of the costs the State incurs for patient care,[Footnote 3] and, in return, the State pays its portion of the costs and complies with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program. See §1396a. One such requirement is that the state agency in charge of Medicaid (here, ADHS) “take all reasonable measures to ascertain the legal liability of third parties . . . to pay for care and services available under the plan.” §1396a(a)(25)(A) (2000 ed.).[Footnote 4] The agency’s obligation extends beyond mere identification, however; “in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability.” §1396a(a)(25)(B). To facilitate its reimbursement from liable third parties, the State must, “to the extent that payment has been made under the State plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance, [have] in effect laws under which, to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services.” §1396a(a)(25)(H). The obligation to enact assignment laws is reiterated in another provision of the SSA, which reads as follows: “(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall— “(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required— “(A) to assign the State any rights . . . to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party; “(B) to cooperate with the State . . . in obtaining support and payments (described in paragraph (A)) for himself … ; and “(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan . . . .” §1396k(a). Finally, “any amount collected by the State under an assignment made” as described above “shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of” the Medicaid recipient. §1396k(b). “[T]he remainder of such amount collected shall be paid” to the recipient. Ibid. Acting pursuant to its understanding of these third-party liability provisions, the State of Arkansas passed laws that purport to allow both ADHS and the Medicaid recipient, either independently or together, to recover “the cost of benefits” from third parties. Ark. Code Ann. §§20–77–301 through 20–77–309 (2001). Initially, “[a]s a condition of eligibility” for Medicaid, an applicant “shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to [ADHS] to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant.” §20–77–307(a). Accordingly, “[w]hen medical assistance benefits are provided” to the recipient “because of injury, disease, or disability for which another person is liable,” ADHS “shall have a right to recover from the person the cost of benefits so provided.” §20–77–301(a).[Footnote 5] ADHS’ suit “shall” not, however, “be a bar to any action upon the claim or cause of action of the recipient.” §20–77–301(b). Indeed, the statute envisions that the recipient will sometimes sue together with ADHS, see §20–77–303, or even alone. If the latter, the assignment described in §20–77–307(a) “shall be considered a statutory lien on any settlement, judgment, or award received . . . from a third party.” §20–77–307(c); see also §20–77–302(a) (“When an action or claim is brought by a medical assistance recipient . . . , any settlement, judgment, or award obtained is subject to the division’s claim for reimbursement of the benefits provided to the recipient under the medical assistance program”).[Footnote 6] The State, through this statute, claims an entitlement to more than just that portion of a judgment or settlement that represents payment for medical expenses. It claims a right to recover the entirety of the costs it paid on the Medicaid recipient’s behalf. Accordingly, if, for example, a recipient sues alone and settles her entire action against a third-party tortfeasor for $20,000, and ADHS has paid that amount or more to medical providers on her behalf, ADHS gets the whole settlement and the recipient is left with nothing. This is so even when the parties to the settlement allocate damages between medical costs, on the one hand, and other injuries like lost wages, on the other. The same rule also would apply, it seems, if the recovery were the result not of a settlement but of a jury verdict. In that case, under the Arkansas statute, ADHS could recover the full $20,000 in the face of a jury allocation of, say, only $10,000 for medical expenses.[Footnote 7] That this is what the Arkansas statute requires has been confirmed by the State’s Supreme Court. In Arkansas Dept. of Human Servs. v. Ferrel, 336 Ark. 297, 984 S. W. 2d 807 (1999), the court refused to endorse an equitable, nontextual interpretation of the statute. Rejecting a Medicaid recipient’s argument that he ought to retain some of a settlement that was insufficient to cover both his and Medicaid’s expenses, the court explained: “Given the clear, unambiguous language of the statute, it is apparent that the legislature intended that ADHS’s ability to recoup Medicaid payments from third parties or recipients not be restricted by equitable subrogation principles such as the ‘made whole’ rule stated in [Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S. W. 2d 837 (1997)]. By creating an automatic legal assignment which expressly becomes a statutory lien, [Ark. Code Ann. §20–77–307 (1991)] makes an unequivocal statement that the ADHS’s ability to recover Medicaid payments from insurance settlements, if it so chooses, is superior to that of the recipient even when the settlement does not pay all the recipient’s medical costs.” Id., at 308, 984 S. W. 2d, at 811. Accordingly, the Arkansas statute, if enforceable against Ahlborn, authorizes imposition of a lien on her settlement proceeds in the amount of $215,645.30. Ahlborn’s argument before the District Court, the Eighth Circuit, and this Court has been that Arkansas law goes too far. We agree. Arkansas’ statute finds no support in the federal third-party liability provisions, and in fact squarely conflicts with the anti-lien provision of the federal Medicaid laws. III We must decide whether ADHS can lay claim to more than the portion of Ahlborn’s settlement that represents medical expenses.[Footnote 8] The text of the federal third-party liability provisions suggests not; it focuses on recovery of payments for medical care. Medicaid recipients must, as a condition of eligibility, “assign the State any rights . . . to payment for medical care from any third party,” 42 U. S. C. §1396k(a) (1)(A) (emphasis added), not rights to payment for, for example, lost wages. The other statutory language that ADHS relies upon is not to the contrary; indeed, it reinforces the limitation implicit in the assignment provision. First, ADHS points to §1396a(a)(25)(B)’s requirement that States “seek reimbursement for [medical] assistance to the extent of such legal liability” (emphasis added) and suggests that this means that the entirety of a recipient’s settlement is fair game. In fact, as is evident from the context of the emphasized language, “such legal liability” refers to “the legal liability of third parties . . . to pay for care and services available under the plan.” §1396a(a)(25)(A) (emphasis added). Here, the tortfeasor has accepted liability for only one-sixth of the recipient’s overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses. Under the circumstances, the relevant “liability” extends no further than that amount.[Footnote 9] Second, ADHS argues that the language of §1396a(a)(25)(H) favors its view that it can demand full reimbursement of its costs from Ahlborn’s settlement. That provision, which echoes the requirement of a mandatory assignment of rights in §1396k(a), says that the State must have in effect laws that, “to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual,” give the State the right to recover from liable third parties. This must mean, says ADHS, that the agency’s recovery is limited only by the amount it paid out on the recipient’s behalf—and not by the third-party tortfeasor’s particular liability for medical expenses. But that reading ignores the rest of the provision, which makes clear that the State must be assigned “the rights of [the recipient] to payment by any other party for such health care items or services.” §1396a(a)(25)(H) (emphasis added). Again, the statute does not sanction an assignment of rights to payment for anything other than medical expenses—not lost wages, not pain and suffering, not an inheritance. Finally, ADHS points to the provision requiring that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from “any amount collected by the State under an assignment” before “the remainder of such amount collected” is remitted to the recipient. §1396k(b). In ADHS’ view, this shows that the State must be paid in full from any settlement. See Brief for Petitioners 13. But, even assuming the provision applies in cases where the State does not actively participate in the litigation, ADHS’ conclusion rests on a false premise: The “amount recovered … under an assignment” is not, as ADHS assumes, the entire settlement; as explained above, under the federal statute the State’s assigned rights extend only to recovery of payments for medical care. Accordingly, what §1396k(b) requires is that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.[Footnote 10] At the very least, then, the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care.[Footnote 11] They did not mandate the enactment of the Arkansas scheme that we have described. IV If there were no other relevant provisions in the federal statute, the State might plausibly argue that federal law supplied a recovery “floor” upon which States were free to build. In fact, though, the federal statute places express limits on the State’s powers to pursue recovery of funds it paid on the recipient’s behalf. These limitations are contained in 42 U. S. C. §§1396a(a)(18) and 1396p. Section 1396a(a)(18) requires that a State Medicaid plan comply with §1396p, which in turn prohibits States (except in circumstances not relevant here) from placing liens against, or seeking recovery of benefits paid from, a Medicaid recipient: “(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan “(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except— “(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or “(B) [in certain circumstances not relevant here] … . “(b) Adjustment or recovery of medical assistance correctly paid under a State plan “(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except [in circumstances not relevant here].” §1396p. Read literally and in isolation, the anti-lien prohibition contained in §1396p(a) would appear to ban even a lien on that portion of the settlement proceeds that represents payments for medical care.[Footnote 12] Ahlborn does not ask us to go so far, though; she assumes that the State’s lien is consistent with federal law insofar as it encumbers proceeds designated as payments for medical care. Her argument, rather, is that the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement. We agree. There is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient “assign” in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383–385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies. ADHS tries to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn’s “property.”[Footnote 13] Its argument appears to be that the automatic assignment effected by the Arkansas statute rendered the proceeds the property of the State.[Footnote 14] See Brief for Petitioners 31 (“[U]nder Arkansas law, the lien does not attach to the recipient’s ‘property’ because it attaches only to those proceeds already assigned to the Department as a condition of Medicaid eligibility”). That argument fails for two reasons. First, ADHS insists that Ahlborn at all times until judgment retained her entire chose in action—a right that included her claim for medical damages. The statutory lien, then, cannot have attached until the proceeds materialized. That much is clear from the text of the Arkansas statute, which says that the “assignment shall be considered a statutory lien on any settlement . . . received by the recipient from a third party.” Ark. Code Ann. §20–77–307(c) (2001) (emphasis added). The settlement is not “received” until the chose in action has been reduced to proceeds in Ahlborn’s possession. Accordingly, the assertion that any of the proceeds belonged to the State all along lacks merit. Second, the State’s argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory lien on those proceeds. Why, after all, would ADHS need a lien on its own property? A lien typically is imposed on the property of another for payment of a debt owed by that other. See Black’s Law Dictionary 922 (6th ed. 1990). Nothing in the Arkansas statute defines the term otherwise. That the lien is also called an “assignment” does not alter the analysis. The terms that Arkansas employs to describe the mechanism by which it lays claim to the settlement proceeds do not, by themselves, tell us whether the statute violates the anti-lien provision. See United States v. Craft, 535 U. S. 274, 279 (2002); Drye v. United States, 528 U. S. 49, 58–61 (1999). Although denominated an “assignment,” the effect of the statute here was not to divest Ahlborn of all her property interest; instead, Ahlborn retained the right to sue for medical care payments, and the State asserted a right to the fruits of that suit once they materialized. In effect, and as at least some of the statutory language recognizes, Arkansas has imposed a lien on Ahlborn’s property.[Footnote 15] Since none of the federal third-party liability provisions excepts that lien from operation of the anti-lien provision, its imposition violates federal law. V ADHS and its amici urge, however, that even if a lien on more than medical damages would violate federal law in some cases, a rule permitting such a lien ought to apply here either because Ahlborn breached her duty to “cooperate” with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. Neither argument is persuasive. The United States proposes a default rule of full reimbursement whenever the recipient breaches her duty to “cooperate,” and asserts that Ahlborn in fact breached that duty.[Footnote 16] But, even if the Government’s allegations of obstruction were supported by the record, its conception of the duty to cooperate strays far beyond the text of the statute and the relevant regulations. The duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. See 42 U. S. C. §1396k(a)(1)(C) (recipients must “cooperate with the State in identifying . . . and providing information to assist the State in pursuing” third parties). Most of the accompanying federal regulations simply echo this basic duty; all they add is that the recipient must “[p]ay to the agency any support or medical care funds received that are covered by the assignment of rights.” 42 CFR §433.147(b)(4) (2005). In any event, the aspersions the United States casts upon Ahlborn are entirely unsupported; all the record reveals is that ADHS, despite having intervened in the lawsuit and asked to be apprised of any hearings, neither asked to be nor was involved in the settlement negotiations. Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here. ADHS’ and the United States’ alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation is more colorable, but ultimately also unpersuasive. The issue is not, of course, squarely presented here; ADHS has stipulated that only $35,581.47 of Ahlborn’s settlement proceeds properly are designated as payments for medical costs. Even in the absence of such a post-settlement agreement, though, the risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.[Footnote 17] For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.[Footnote 18] VI Finally, ADHS contends that the Court of Appeals’ decision below accords insufficient weight to two decisions by the Departmental Appeals Board of HHS (Board) rejecting appeals by the States of California and Washington from denial of reimbursement for costs those States paid on behalf of Medicaid recipients who had settled tort claims. See App. to Pet. for Cert. 45–67 (reproducing In re Washington State Dept. of Social & Health Servs., Dec. No. 1561, 1996 WL 157123 (HHS Dept. App. Bd., Feb. 7, 1996)); App. to Pet. for Cert. 68–86 (reproducing In re California Dept. of Health Servs., Dec. No. 1504, 1995 WL 66334 (HHS Dept. App. Bd., Jan. 5, 1995)). Because the opinions in those cases address a different question from the one posed here, make no mention of the anti-lien provision, and, in any event, rest on a questionable construction of the federal third-party liability provisions, we conclude that they do not control our analysis. Normally, if a State recovers from a third party the cost of Medicaid benefits paid on behalf of a recipient, the Federal Government owes the State no reimbursement, and any funds already paid by the Federal Government must be returned. See 42 CFR §433.140(a)(2) (2005) (federal financial participation “is not available in Medicaid payments if . . . [t]he agency received reimbursement from a liable third party”); §433.140(c). Washington and California both had adopted schemes according to which the State refrained from claiming full reimbursement from tort settlements and instead took only a portion of each settlement. (In California, the recipient typically could keep at least 50% of her settlement, see App. to Pet. for Cert. 72; in Washington, the proportion varied from case to case, see id., at 48–51.) Each scheme resulted in the State’s having to pay a portion of the recipient’s medical costs—a portion for which the State sought partial reimbursement from the Federal Government. CMS (then called HCFA) denied this partial reimbursement on the ground that the States had an absolute duty to seek full payment of medical expenses from third-party tortfeasors. The Board upheld CMS’ determinations. In California’s appeal, which came first, the Board concluded that the State’s duty to seek recovery of benefits “from available third party sources to the fullest extent possible” included demanding full reimbursement from the entire proceeds of a Medicaid recipient’s tort settlement. Id., at 76. The Board acknowledged that §1396k(a) “refers to assignment only of ‘payment for medical care,’ ” but thought that “the statutory scheme as a whole contemplates that the actual recovery might be greater and, if it is, that Medicaid should be paid first.” Ibid. The Board gave two other reasons for siding with CMS: First, the legislative history of the third-party liability evinced a congressional intent that “the Medicaid program . . . be reimbursed from available third party sources to the fullest extent possible,” ibid.; and, second, California had long been on notice that it would not be reimbursed for any shortfall resulting from failure to fully recoup Medicaid’s costs from tort settlements, see id., at 77. The Board also opined that the State could not escape its duty to seek full reimbursement by relying on the Medicaid recipient’s efforts in litigating her claims. See id., at 79–80. Finally, responding to the State’s argument that its scheme gave Medicaid recipients incentives to sue third-party tortfeasors and thus resulted in both greater recovery and lower costs for the State, the Board observed that “a state is free to allow recipients to retain the state’s share” of any recovery, so long as it does not compromise the Federal Government’s share. Id., at 85. The Board reached the same conclusion, by the same means, in the Washington case. See id., at 53–64. Neither of these adjudications compels us to conclude that Arkansas’ statutory lien comports with federal law. First, the Board’s rulings address a different question from the one presented here. The Board was concerned with the Federal Government’s obligation to reimburse States that had, in its view, failed to seek full recovery of Medicaid’s costs and had instead relied on recipients to act as private attorneys general. The Board neither discussed nor even so much as cited the federal anti-lien provision. Second, the Board’s acknowledgment that the assignment of rights required by §1396k(a) is limited to payments for medical care only reinforces the clarity of the statutory language. Moreover, its resort to “the statutory scheme as a whole” as justification for muddying that clarity is nowhere explained. Given that the only statutory provisions CMS relied on are §§1396a(a)(25), 1396k(a), and 1396k(b), see id., at 75–76; id., at 54–55, and given the Board’s concession that the first two of these limit the State’s assignment to payments for medical care, the “statutory scheme” must mean §1396k(b). But that provision does not authorize the State to demand reimbursement from portions of the settlement allocated or allocable to nonmedical damages; instead, it gives the State a priority disbursement from the medical expenses portion alone. See supra, at 12. In fact, in its adjudication in the Washington case, the Board conceded as much: “[CMS] may require a state to assert a collection priority over funds obtained by Medicaid recipients in [third-party liability] suits even though the distribution methodology set forth in section [1396k(b)] refers only to payments collected pursuant to assignments for medical care.” App. to Pet. for Cert. 54 (emphasis added). The Board’s reasoning therefore is internally inconsistent. Third, the Board’s reliance on legislative history is misplaced. The Board properly observed that Congress, in crafting the Medicaid legislation, intended that Medicaid be a “payer of last resort.” S. Rep. No. 99–146, p. 313 (1985). That does not mean, however, that Congress meant to authorize States to seek reimbursement from Medicaid recipients themselves; in fact, with the possible exception of a lien on payments for medical care, the statute expressly prohibits liens against the property of Medicaid beneficiaries. See 42 U. S. C. §1396p(a). We recognize that Congress has delegated “broad regulatory authority to the Secretary [of HHS] in the Medicaid area,” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U. S. 473, 496, n. 13 (2002), and that agency adjudications typically warrant deference. Here, however, the Board’s reasoning couples internal inconsistency with a conscious disregard for the statutory text. Under these circumstances, we decline to treat the agency’s reasoning as controlling. VII Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn’s settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so. Arkansas’ third-party liability provisions are unenforceable insofar as they compel a different conclusion. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Affidavit of Wayne E. Olive, Exhs. 5 and 6 (Mar. 6, 2003). Footnote 2 Until 2001, CMS was known as the Health Care Financing Administration or HCFA. See 66 Fed. Reg. 35437. Footnote 3 The exact percentage of the federal contribution is calculated pursuant to a formula keyed to each State’s per capita income. See 42 U. S. C. §1396d(b). Footnote 4 A “third party” is defined by regulation as “any individual, entity or program that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State plan.” 42 CFR §433.136 (2005). Footnote 5 Under the Arkansas statute, ADHS’ right to recover medical costs appears to be broader than that of the recipient. When ADHS sues, “no contributory or comparative fault of a recipient shall be attributed to the state, nor shall any restitution awarded to the state be denied or reduced by any amount or percentage of fault attributed to a recipient.” §20–77–301(d)(1) (2001). Footnote 6 The Arkansas Supreme Court has held that ADHS has an independent, nonderivative right to recover the cost of benefits from a third-party tortfeasor under §20–77–301 even when the Medicaid recipient also sues for recovery of medical expenses. See National Bank of Commerce v. Quirk, 323 Ark. 769, 792–794, 918 S. W. 2d 138, 151–152 (1996). Footnote 7 ADHS denies that it would actually demand the full $20,000 in such a case, see Brief for Petitioners 49, n. 13, but points to no provision of the Arkansas statute that would prevent it from doing so. Footnote 8 The parties here assume, as do we, that a State can fulfill its obligations under the federal third-party liability provisions by requiring an “assignment” of part of, or placing a lien on, the settlement that a Medicaid recipient procures on her own. Cf. §§1396k(a)(B)–(C) (the recipient has a duty to identify liable third parties and to “provid[e] information to assist the State in pursuing” those parties (emphasis added)). Footnote 9 The effect of the stipulation is the same as if a trial judge had found that Ahlborn’s damages amounted to $3,040,708.12 (of which $215,645.30 were for medical expenses), but because of her contributory negligence, she could only recover one-sixth of those damages. Footnote 10 Implicit in ADHS’ interpretation of this provision is the assumption that there can be no “remainder” to remit to the Medicaid recipient if all the State has been assigned is the right to damages for medical expenses. That view in turn seems to rest on an assumption either that Medicaid will have paid all the recipient’s medical expenses or that Medicaid’s expenses will always exceed the portion of any third-party recovery earmarked for medical expenses. Neither assumption holds up. First, as both the Solicitor General and CMS acknowledge, the recipient often will have paid medical expenses out of her own pocket. See Brief for United States as Amicus Curiae 12 (under §1396k(b), “the beneficiary retains the right to payment for any additional medical expenses personally incurred either before or subsequent to Medicaid eligibility and for other damages”); CMS, State Medicaid Manual §3907 (last modified Sept. 16, 2005) (envisioning that “medical insurance payments,” for example, will be remitted to the recipient if possible). Second, even if Medicaid’s outlays often exceed the portion of the recovery earmarked for medical expenses in tort cases, the third-party liability provisions were not drafted exclusively with tort settlements in mind. In the case of health insurance, for example, the funds available under the policy may be enough to cover both Medicaid’s costs and the recipient’s own medical expenses. Footnote 11 ADHS concedes that, had a jury or judge allocated a sum for medical payments out of a larger award in this case, the agency would be entitled to reimburse itself only from the portion so allocated. See Brief for Petitioners 49, n. 13; see also Brief for United States as Amicus Curiae 22, n. 14 (noting that the Secretary of HHS “ordinarily accepts” a jury allocation of medical damages in satisfaction of the Medicaid debt, even where smaller than the amount of Medicaid’s expenses). Given the stipulation between ADHS and Ahlborn, there is no textual basis for treating the settlement here differently from a judge-allocated settlement or even a jury award; all such awards typically establish a third party’s “liability” for both “payment for medical care” and other heads of damages. Footnote 12 Likewise, subsection (b) would appear to forestall any attempt by the State to recover benefits paid, at least from the “individual.” See, e.g., Martin ex rel. Hoff v. Rochester, 642 N. W. 2d 1, 8, n. 6 (Minn. 2002); Wallace v. Estate of Jackson, 972 P. 2d 446, 450 (Utah 1998) (Durham, J., dissenting) (reading §1396p to “prohibi[t] not only liens against Medicaid recipients but also any recovery for medical assistance correctly paid”). The parties here, however, neither cite nor discuss the anti-recovery provision of §1396p(b). Accordingly, we leave for another day the question of its impact on the analysis. Footnote 13 “Property” is defined by regulation as “the homestead and all other personal and real property in which the recipient has a legal interest.” 42 CFR §433.36(b) (2005). Footnote 14 The United States as amicus curiae makes the different argument that the proceeds never became Ahlborn’s “property” because “to the extent the third party’s payment passes through the recipient’s hands en route to the State, it comes with the State’s lien already attached.” Brief as Amicus Curiae 18. Even if that reading were consistent with the Arkansas statute (and it is not, see infra, at 16), the United States’ characterization of the “assignment” simply reinforces Ahlborn’s point: This is a lien that attaches to the property of the recipient. Footnote 15 Because ADHS insists that “Arkansas law did not require Ahlborn to assign her claim or her right to sue,” Brief for Petitioners 33 (emphasis in original), we need not reach the question whether a State may force a recipient to assign a chose in action to receive as much of the settlement as is necessary to pay Medicaid’s costs. The Eighth Circuit thought this would be impermissible because the State cannot “circumvent the restrictions of the federal anti-lien statute simply by requiring an applicant for Medicaid benefits to assign property rights to the State before the applicant liquidates the property to a sum certain.” App. to Pet. for Cert. 6. Indeed, ADHS acknowledges that Arkansas cannot, for example, require a Medicaid applicant to assign in advance any right she may have to recover an inheritance or an award in a civil case not related to her injuries or medical care. This arguably is no different; as with assignment of those other choses in action, assignment of the right to compensation for lost wages and other nonmedical damages is nowhere authorized by the federal third-party liability provisions. Footnote 16 See, e.g., Brief for United States as Amicus Curiae 14 (alleging that Ahlborn “omitt[ed] or understat[ed] the medical damages claim from her lawsuit and attempt[ed] to horde for herself the third-party liability payments”); id., at 15 (“[H]aving forsaken her federal and state statutory duties of candid and forthcoming cooperation . . . [,] respondent, rather than the taxpayers, must bear the financial consequences of her actions”); id., at 21, 24 (referring to Ahlborn’s “backdoor settlement” and “obstruction and attrition,” as well as her “calculated evasion of her legal obligations”). Footnote 17 As one amicus observes, some States have adopted special rules and procedures for allocating tort settlements in circumstances where, for example, private insurers’ rights to recovery are at issue. See Brief for Association of Trial Lawyers of America 20–21. Although we express no view on the matter, we leave open the possibility that such rules and procedures might be employed to meet concerns about settlement manipulation. Footnote 18 The point is illustrated by state cases involving the recovery of workers’ compensation benefits paid to an employee (or the family of an employee) whose injuries were caused by a third-party tortfeasor. In Flanigan v. Department of Labor and Industry, 123 Wash. 2d 418, 869 P. 2d 14 (1994), for example, the court concluded that the state agency could not satisfy its lien out of damages the injured worker’s spouse recovered as compensation for loss of consortium. The court explained that the department could not “share in damages for which it has provided no compensation” because such a result would be “absurd and fundamentally unjust.” Id., at 426, 869 P. 2d, at 17.
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548.US.291
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After respondents prevailed in their Individuals with Disabilities Education Act (IDEA) action to require petitioner school board to pay for their son’s private school tuition, they sought fees for services rendered by an educational consultant during the proceedings, relying on an IDEA provision that permits a court to “award reasonable attorneys’ fees as part of the costs” to prevailing parents, 20 U. S. C. §1415(i)(3)(B). The District Court granted their motion in part. Affirming, the Second Circuit noted that, under Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, and West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, a cost- or fee-shifting provision will not be read to permit recovery of expert fees without explicit statutory authority, but concluded that a congressional Conference Committee Report relating to §1415(i)(3)(B) and a footnote in Casey referencing that Report showed that the IDEA authorized such reimbursement. Held: Section §1415(i)(3)(B) does not authorize prevailing parents to recover expert fees. Pp. 3–12. (a) The resolution of this question is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause. While Congress has broad power to set the terms on which it disburses federal money to the States, any conditions it attaches to a State’s acceptance of such funds must be set out “unambiguously.” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. Fund recipients are bound only by those conditions that they accept “voluntarily and knowingly,” ibid., and States cannot knowingly accept conditions of which they are “unaware” or which they are “unable to ascertain,” ibid. Thus, the question here is whether the IDEA furnishes clear notice regarding expert fees. Pp. 3–4. (b) The Court begins with the IDEA’s text, for if its “language is plain,” the courts’ function “ ‘ “is to enforce it according to its terms.” ’ ” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6. While §1415(i)(3)(B) provides for an award of “reasonable attorneys’ fees,” it does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for the services of experts. “Costs” is a term of art that does not generally include expert fees. The use of “costs” rather than “expenses” strongly suggests that §1415(i)(3)(B) was not meant to be an open-ended provision making States liable for all expenses. Moreover, §1415(i)(3)(B) says not that a court may award “costs” but that it may award attorney’s fees “as part of the costs.” This language simply adds reasonable attorney’s fees to the list of recoverable costs set out in 28 U. S. C. §1920, the general statute covering taxation of costs, which is strictly limited by §1821. Thus, §1415(i)(3)(B)’s text does not authorize an award of additional expert fees, and it certainly fails to present the clear notice required by the Spending Clause. Other IDEA provisions point strongly in the same direction. Of little significance here is a provision in the Handicapped Children’s Protection Act of 1986 requiring the General Accounting Office to collect data on awards to prevailing parties in IDEA cases, but making no mention of consultants or experts or their fees. And the fact that the provision directed the GAO to compile data on the hours spent by consultants in IDEA cases does not mean that Congress intended for States to compensate prevailing parties for fees billed by these consultants. Pp. 4–8. (c) Crawford Fitting Co. and Casey strongly reinforce the conclusion that the IDEA does not unambiguously authorize prevailing parents to recover expert fees. Crawford Fitting Co.’s reasoning supports the conclusion that the term “costs” in §1415(i)(3)(B), like “costs” in Federal Rule of Civil Procedure 54(d), the provision at issue there, is defined by the categories of expenses enumerated in 28 U. S. C. §1920. This conclusion is buttressed by the principle, recognized in Crawford Fitting Co., that no statute will be construed to authorize taxing witness fees as costs unless the statute “refer[s] explicitly to witness fees.” 482 U. S., at 445. The conclusion that the IDEA does not authorize expert fee awards is confirmed even more dramatically by Casey, where the Court held that 42 U. S. C. §1988, a fee-shifting provision with wording virtually identical to that of 20 U. S. C. §1415(i)(3)(B), did not empower a district court to award expert fees to a prevailing party. 482 U. S., at 102. The Second Circuit misunderstood the meaning of the Casey footnote on which it relied. That footnote did not state that the Conference Committee Report set out the correct interpretation of §1415(i)(3)(B) or provided the clear notice required under the Spending Clause. Its thrust was simply that “attorneys’ fees,” standing alone, is generally not understood as encompassing expert fees. Pp. 8–11. (d) Respondents’ additional arguments are unpersuasive. The IDEA’s goals of “ensur[ing] that all children with disabilities have available to them a free appropriate public education,” §1400(d)(1)(A), and of safeguarding parents’ right to challenge adverse school decisions are too general to provide much support for their reading of the IDEA. And the IDEA’s legislative history is insufficient help, where everything other than that history overwhelmingly suggests that expert fees may not be recovered. Pp. 11–12. 402 F. 3d 332, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment. Souter, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens and Souter, JJ., joined.
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The Individuals with Disabilities Education Act (IDEA or Act) provides that a court “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 111 Stat. 92, 20 U. S. C. §1415(i)(3)(B). We granted certiorari to decide whether this fee-shifting provision authorizes prevailing parents to recover fees for services rendered by experts in IDEA actions. We hold that it does not. I Respondents Pearl and Theodore Murphy filed an action under the IDEA on behalf of their son, Joseph Murphy, seeking to require petitioner Arlington Central School District Board of Education to pay for their son’s private school tuition for specified school years. Respondents prevailed in the District Court, 86 F. Supp. 2d 354 (SDNY 2000), and the Court of Appeals for the Second Circuit affirmed, 297 F. 3d 195 (2002). As prevailing parents, respondents then sought $29,350 in fees for the services of an educational consultant, Marilyn Arons, who assisted respondents throughout the IDEA proceedings. The District Court granted respondents’ request in part. It held that only the value of Arons’ time spent between the hearing request and the ruling in respondents’ favor could properly be considered charges incurred in an “action or proceeding brought” under the Act, see 20 U. S. C. §1415(i)(3)(B). 2003 WL 21694398, *9 (SDNY, July 22, 2003). This reduced the maximum recovery to $8,650. The District Court also held that Arons, a nonlawyer, could be compensated only for time spent on expert consulting services, not for time spent on legal representation, id., at *4, but it concluded that all the relevant time could be characterized as falling within the compensable category, and thus allowed compensation for the full $8,650, id., at *10. The Court of Appeals for the Second Circuit affirmed. 402 F. 3d 332 (2005). Acknowledging that other Circuits had taken the opposite view, the Court of Appeals for the Second Circuit held that “Congress intended to and did authorize the reimbursement of expert fees in IDEA actions.” Id., at 336. The court began by discussing two decisions of this Court holding that expert fees could not be recovered as taxed costs under particular cost- or fee-shifting provisions. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437 (1987) (interpreting Fed. Rule Civ. Proc. 54(d) and 28 U. S. C. §1920); West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991) (interpreting 42 U. S. C. §1988 (1988 ed.)). According to these decisions, the court noted, a cost- or fee-shifting provision will not be read to permit a prevailing party to recover expert fees without “ ‘explicit statutory authority’ indicating that Congress intended for that sort of fee-shifting.” 402 F. 3d, at 336. Ultimately, though, the court was persuaded by a statement in the Conference Committee Report relating to 20 U. S. C. §1415(i)(3)(B) and by a footnote in Casey that made reference to that Report. 402 F. 3d, at 336–337 (citing H. R. Conf. Rep. No. 99–687, p. 5 (1986)). Based on these authorities, the court concluded that it was required to interpret the IDEA to authorize the award of the costs that prevailing parents incur in hiring experts. 402 F. 3d, at 336. We granted certiorari, 546 U. S. ____ (2006), to resolve the conflict among the Circuits with respect to whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions. Compare Goldring v. District of Columbia, 416 F. 3d 70, 73–77 (CADC 2005); Neosho R-V School Dist. v. Clark ex rel. Clark, 315 F. 3d 1022, 1031–1033 (CA8 2003); T. D. v. LaGrange School Dist. No. 102, 349 F. 3d 469, 480–482 (CA7 2003), with 402 F. 3d 332 (CA2 2005). We now reverse. II Our resolution of the question presented in this case is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause. U. S. Const., Art. I, §8, cl. 1; see Schaffer v. Weast, 546 U. S. ____ (2005). Like its statutory predecessor, the IDEA provides federal funds to assist state and local agencies in educating children with disabilities “and conditions such funding upon a State’s compliance with extensive goals and procedures.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 179 (1982). Congress has broad power to set the terms on which it disburses federal money to the States, see, e.g., South Dakota v. Dole, 483 U. S. 203, 206–207 (1987), but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out “unambiguously,” see Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981); Rowley, supra, at 204, n. 26. “[L]egislation enacted pursuant to the spending power is much in the nature of a contract,” and therefore, to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.” Pennhurst, 451 U. S., at 17. States cannot knowingly accept conditions of which they are “unaware” or which they are “unable to ascertain.” Ibid. Thus, in the present case, we must view the IDEA from the perspective of a state official who is engaged in the process of deciding whether the State should accept IDEA funds and the obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regarding the liability at issue in this case. III A In considering whether the IDEA provides clear notice, we begin with the text. We have “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992). When the statutory “language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000) (quoting United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989), in turn quoting Caminetti v. United States, 242 U. S. 470, 485 (1917); internal quotation marks omitted). The governing provision of the IDEA, 20 U. S. C. §1415(i)(3)(B), provides that “[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs” to the parents of “a child with a disability” who is the “prevailing party.” While this provision provides for an award of “reasonable attorneys’ fees,” this provision does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for services rendered by experts. Respondents contend that we should interpret the term “costs” in accordance with its meaning in ordinary usage and that §1415(i)(3)(B) should therefore be read to “authorize reimbursement of all costs parents incur in IDEA proceedings, including expert costs.” Brief for Respondents 17. This argument has multiple flaws. For one thing, as the Court of Appeals in this case acknowledged, “ ‘costs’ is a term of art that generally does not include expert fees.” 402 F. 3d, at 336. The use of this term of art, rather than a term such as “expenses,” strongly suggests that §1415(i)(3)(B) was not meant to be an open-ended provision that makes participating States liable for all expenses incurred by prevailing parents in connection with an IDEA case—for example, travel and lodging expenses or lost wages due to time taken off from work. Moreover, contrary to respondents’ suggestion, §1415(i)(3)(B) does not say that a court may award “costs” to prevailing parents; rather, it says that a court may award reasonable attorney’s fees “as part of the costs” to prevailing parents. This language simply adds reasonable attorney’s fees incurred by prevailing parents to the list of costs that prevailing parents are otherwise entitled to recover. This list of otherwise recoverable costs is obviously the list set out in 28 U. S. C. §1920, the general statute governing the taxation of costs in federal court, and the recovery of witness fees under §1920 is strictly limited by §1821, which authorizes travel reimbursement and a $40 per diem. Thus, the text of 20 U. S. C. §1415(i)(3)(B) does not authorize an award of any additional expert fees, and it certainly fails to provide the clear notice that is required under the Spending Clause. Other provisions of the IDEA point strongly in the same direction. While authorizing the award of reasonable attorney’s fees, the Act contains detailed provisions that are designed to ensure that such awards are indeed reasonable. See §§1415(i)(3)(C)–(G). The absence of any comparable provisions relating to expert fees strongly suggests that recovery of expert fees is not authorized. Moreover, the lack of any reference to expert fees in §1415(d)(2) gives rise to a similar inference. This provision, which generally requires that parents receive “a full explanation of the procedural safeguards” available under §1415 and refers expressly to “attorneys’ fees,” makes no mention of expert fees. B Respondents contend that their interpretation of §1415(i)(3)(B) is supported by a provision of the Handicapped Children’s Protection Act of 1986 that required the General Accounting Office (GAO) to collect certain data, §4(b)(3), 100 Stat. 797 (hereinafter GAO study provision), but this provision is of little significance for present purposes. The GAO study provision directed the Comptroller General, acting through the GAO, to compile data on, among other things: “(A) the specific amount of attorneys’ fees, costs, and expenses awarded to the prevailing party” in IDEA cases for a particular period of time, and (B) “the number of hours spent by personnel, including attorneys and consultants, involved in the action or proceeding, and expenses incurred by the parents and the State educational agency and local educational agency.” Id., at 797–798. Subparagraph (A) would provide some support for respondents’ position if it directed the GAO to compile data on awards to prevailing parties of the expense of hiring consultants, but that is not what subparagraph (A) says. Subparagraph (A) makes no mention of consultants or experts or their fees.[Footnote 1] Subparagraph (B) similarly does not help respondents. Subparagraph (B), which directs the GAO to study “the number of hours spent [in IDEA cases] by personnel, including … consultants,” says nothing about the award of fees to such consultants. Just because Congress directed the GAO to compile statistics on the hours spent by consultants in IDEA cases, it does not follow that Congress meant for States to compensate prevailing parties for the fees billed by these consultants. Respondents maintain that “Congress’ direction to the GAO would be inexplicable if Congress did not anticipate that the expenses for ‘consultants’ would be recoverable,” Brief for Respondents 19, but this is incorrect. There are many reasons why Congress might have wanted the GAO to gather data on expenses that were not to be taxed as costs. Knowing the costs incurred by IDEA litigants might be useful in considering future procedural amendments (which might affect these costs) or a future amendment regarding fee shifting. And, in fact, it is apparent that the GAO study provision covered expenses that could not be taxed as costs. For example, the GAO was instructed to compile statistics on the hours spent by all attorneys involved in an IDEA action or proceeding, even though the Act did not provide for the recovery of attorney’s fees by a prevailing state or local educational agency.[Footnote 2] Similarly, the GAO was directed to compile data on “expenses incurred by the parents,” not just those parents who prevail and are thus eligible to recover taxed costs. In sum, the terms of the IDEA overwhelmingly support the conclusion that prevailing parents may not recover the costs of experts or consultants. Certainly the terms of the IDEA fail to provide the clear notice that would be needed to attach such a condition to a State’s receipt of IDEA funds. IV Thus far, we have considered only the text of the IDEA, but perhaps the strongest support for our interpretation of the IDEA is supplied by our decisions and reasoning in Crawford Fitting, 482 U. S. 437, and Casey, 499 U. S. 83. In light of those decisions, we do not see how it can be said that the IDEA gives a State unambiguous notice regarding liability for expert fees. In Crawford Fitting, the Court rejected an argument very similar to respondents’ argument that the term “costs” in §1415(i)(3)(B) should be construed as an open-ended reference to prevailing parents’ expenses. It was argued in Crawford Fitting that Federal Rule of Civil Procedure 54(d), which provides for the award of “costs” to a prevailing party, authorizes the award of costs not listed in 28 U. S. C. §1821. 482 U. S., at 439. The Court held, however, that Rule 54(d) does not give a district judge “discretion to tax whatever costs may seem appropriate”; rather, the term “costs” in Rule 54(d) is defined by the list set out in §1920. Id., at 441. Because the recovery of witness fees, see §1920(3), is strictly limited by §1821, the Court observed, a broader interpretation of Rule 54(d) would mean that the Rule implicitly effected a partial repeal of those provisions. Id., at 442. But, the Court warned, “[w]e will not lightly infer that Congress has repealed §§1920 and 1821, either through Rule 54(d) or any other provision not referring explicitly to witness fees.” Id., at 445. The reasoning of Crawford Fitting strongly supports the conclusion that the term “costs” in 20 U. S. C. §1415(i)(3)(B), like the same term in Rule 54(d), is defined by the categories of expenses enumerated in 28 U. S. C. §1920. This conclusion is buttressed by the principle, recognized in Crawford Fitting, that no statute will be construed as authorizing the taxation of witness fees as costs unless the statute “refer[s] explicitly to witness fees.” 482 U. S., at 445; see also ibid. (“absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U. S. C. §1821 and §1920”). Our decision in Casey confirms even more dramatically that the IDEA does not authorize an award of expert fees. In Casey, as noted above, we interpreted a fee-shifting provision, 42 U. S. C. §1988, the relevant wording of which was virtually identical to the wording of 20 U. S. C. §1415(i)(3)(B). Compare ibid. (authorizing the award of “reasonable attorneys’ fees as part of the costs” to prevailing parents) with 42 U. S. C. §1988(b) (1988 ed.) (permitting prevailing parties in certain civil rights actions to be awarded “a reasonable attorney’s fee as part of the costs”). We held that §1988 did not empower a district court to award expert fees to a prevailing party. Casey, supra, at 102. To decide in favor of respondents here, we would have to interpret the virtually identical language in 20 U. S. C. §1415 as having exactly the opposite meaning. Indeed, we would have to go further and hold that the relevant language in the IDEA unambiguously means exactly the opposite of what the nearly identical language in 42 U. S. C. §1988 was held to mean in Casey. The Court of Appeals, as noted above, was heavily influenced by a Casey footnote, see 402 F. 3d, at 336–337 (quoting 499 U. S., at 91–92, n. 5), but the court misunderstood the footnote’s meaning. The text accompanying the footnote argued, based on an analysis of several fee-shifting statutes, that the term “attorney’s fees” does not include expert fees. Id., at 88–91. In the footnote, we commented on petitioners’ invocation of the Conference Committee Report relating to 20 U. S. C. §1415(i)(3)(B), which stated: “ ‘The conferees intend[ed] that the term “attorneys’ fees as part of the costs” include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the … case.’ ” 499 U. S., at 91–92, n. 5 (quoting H. R. Conf. Rep. No. 99–687, at 5; ellipsis in original). This statement, the footnote commented, was “an apparent effort to depart from ordinary meaning and to define a term of art.” 499 U. S., at 92, n. 5. The footnote did not state that the Conference Committee Report set out the correct interpretation of §1415(i)(3)(B), much less that the Report was sufficient, despite the language of the statute, to provide the clear notice required under the Spending Clause. The thrust of the footnote was simply that the term “attorneys’ fees,” standing alone, is generally not understood as encompassing expert fees. Thus, Crawford Fitting and Casey strongly reinforce the conclusion that the IDEA does not unambiguously authorize prevailing parents to recover expert fees. V Respondents make several arguments that are not based on the text of the IDEA, but these arguments do not show that the IDEA provides clear notice regarding the award of expert fees. Respondents argue that their interpretation of the IDEA furthers the Act’s overarching goal of “ensur[ing] that all children with disabilities have available to them a free appropriate public education,” 20 U. S. C. §1400(d)(1)(A) as well as the goal of “safeguard[ing] the rights of parents to challenge school decisions that adversely affect their child.” Brief for Respondents 20. These goals, however, are too general to provide much support for respondents’ reading of the terms of the IDEA. The IDEA obviously does not seek to promote these goals at the expense of all other considerations, including fiscal considerations. Because the IDEA is not intended in all instances to further the broad goals identified by the respondents at the expense of fiscal considerations, the goals cited by respondents do little to bolster their argument on the narrow question presented here.[Footnote 3] Finally, respondents vigorously argue that Congress clearly intended for prevailing parents to be compensated for expert fees. They rely on the legislative history of §1415 and in particular on the following statement in the Conference Committee Report, discussed above: “The conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the … case.” H. R. Conf. Rep. No. 99–687, at 5. Whatever weight this legislative history would merit in another context, it is not sufficient here. Putting the legislative history aside, we see virtually no support for respondents’ position. Under these circumstances, where everything other than the legislative history overwhelming suggests that expert fees may not be recovered, the legislative history is simply not enough. In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds. Here, in the face of the unambiguous text of the IDEA and the reasoning in Crawford Fitting and Casey, we cannot say that the legislative history on which respondents rely is sufficient to provide the requisite fair notice. * * * We reverse the judgment of the Court of Appeals for the Second Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Because subparagraph (A) refers to both “costs” and “expenses” awarded to prevailing parties and because it is generally presumed that statutory language is not superfluous, it could be argued that this provision manifests the expectation that prevailing parties would be awarded certain “expenses” not included in the list of “costs” set out in 28 U. S. C. §1920 and that expert fees were intended to be among these unenumerated “expenses.” This argument fails because, whatever expectation this language might seem to evidence, the fact remains that neither 20 U. S. C. §1415 nor any other provision of the IDEA authorizes the award of any “expenses” other than “costs.” Recognizing this, respondents argue not that they are entitled to recover “expenses” that are not “costs,” but that expert fees are recoverable “costs.” As a result, the reference to awards of both “expenses” and “costs” does not support respondents’ position. The reference to “expenses” may relate to IDEA actions brought in state court, §1415(i)(2)(A), where “expenses” other than “costs” might be receivable. Or the reference may be surplusage. While it is generally presumed that statutes do not contain surplusage, instances of surplusage are not unknown. Footnote 2 In 2000, the attorneys’ fees provision provided only an award to prevailing parents. See 20 U. S. C. §1415(i)(3)(B). In 2004, Congress amended §1415(i)(3)(B) to include two additional awards. See §101, 118 Stat. 2724. The amendments provided awards “to a prevailing party who is a State educational agency or local educational agency” where the complaint filed is frivolous or presented for an improper purpose, such as to harass, delay, or increase the cost of litigation. See 20 U. S. C. A. §§1415(i)(3)(B)(i)(II)–(III) (Supp. 2006). Footnote 3 Respondents note that a GAO report stated that expert witness fees are reimbursable expenses. See Brief for Respondents 19 (citing GAO, Special Education: The Attorney Fees Provision of Public Law 99–372, p. 13 (Nov. 1989)). But this passing reference in a report issued by an agency not responsible for implementing the IDEA is plainly insufficient to provide clear notice regarding the scope of the conditions attached to the receipt of IDEA funds.
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546.US.320
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New Hampshire’s Parental Notification Prior to Abortion Act, in relevant part, prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minor’s death if there is insufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification. Respondents, who provide abortions for pregnant minors and expect to provide emergency abortions for them in the future, filed suit under 42 U. S. C. §1983, claiming that the Act is unconstitutional because it lacks a health exception and because of the inadequacy of the life exception and the judicial bypass’ confidentiality provision. The District Court declared the Act unconstitutional and permanently enjoined its enforcement, and the First Circuit affirmed. Held: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief. Pp. 4–10. (a) As the case comes to this Court, three propositions are established. First, States have the right to require parental involvement when a minor considers terminating her pregnancy. Second, a State may not restrict access to abortions that are “ ‘necessary, in appropriate medical judgment for preservation of the life or health of the mother.’ ” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (plurality opinion). Third, New Hampshire has not taken issue with the case’s factual basis: In a very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health. New Hampshire has conceded that, under this Court’s cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. Pp. 4–6. (b) Generally speaking, when confronting a statute’s constitutional flaw, this Court tries to limit the solution to the problem, preferring to enjoin only the statute’s unconstitutional applications while leaving the others in force, see United States v. Raines, 362 U. S. 17, 20–22, or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U. S. 220, 227–229. Three interrelated principles inform the Court’s approach to remedies. First, the Court tries not to nullify more of a legislature’s work than is necessary. Second, mindful that its constitutional mandate and institutional competence are limited, the Court restrains itself from “rewrit[ing] state law to confirm it to constitutional requirements.” Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397. Third, the touchstone for any decision about remedy is legislative intent. After finding an application or portion of a statute unconstitutional, the Court must ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally, e.g., Booker, supra, at 227. Here, the courts below chose the most blunt remedy—permanently enjoining the Act’s enforcement and thereby invalidating it entirely. They need not have done so. In Stenberg v. Carhart, 530 U. S. 914—where this Court invalidated Nevada’s “partial birth abortion” law in its entirety for lacking a health exception—the parties did not ask for, and this Court did not contemplate, relief more finely drawn, but here New Hampshire asked for and respondents recognized the possibility of a more modest remedy. Only a few applications of the Act would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the Act’s unconstitutional application. On remand, they should determine in the first instance whether the legislature intended the statute to be susceptible to such a remedy. Pp. 6–10. (c) Because an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statue in toto should obviate any concern about the Act’s life exception, this Court need not pass on the lower courts’ alternative holding. If the Act survives in part on remand, the Court of Appeals should address respondents’ separate objection to the judicial bypass’ confidentiality provision. P. 10. 390 F. 3d 53, vacated and remanded. O’Connor, J., delivered the opinion for a unanimous Court.
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We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief. I A In 2003, New Hampshire enacted the Parental Notification Prior to Abortion Act. N. H. Rev. Stat. Ann. §§132:24–132:28 (Supp. 2004). The Act prohibits physicians from performing an abortion on a pregnant minor (or a woman for whom a guardian or conservator has been appointed) until 48 hours after written notice of the pending abortion is delivered to her parent or guardian. §132:25(I). Notice may be delivered personally or by certified mail. §§132:25(II), (III). Violations of the Act are subject to criminal and civil penalties. §132:27. The Act allows for three circumstances in which a physician may perform an abortion without notifying the minor’s parent. First, notice is not required if “[t]he attending abortion provider certifies in the pregnant minor’s record that the abortion is necessary to prevent the minor’s death and there is insufficient time to provide the required notice.” §132:26(I)(a). Second, a person entitled to receive notice may certify that he or she has already been notified. §132:26(I)(b). Finally, a minor may petition a judge to authorize her physician to perform an abortion without parental notification. The judge must so authorize if he or she finds that the minor is mature and capable of giving informed consent, or that an abortion without notification is in the minor’s best interests. §132:26(II). These judicial bypass proceedings “shall be confidential and shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay,” and access to the courts “shall be afforded [to the] pregnant minor 24 hours a day, 7 days a week.” §§132:26(II)(b), (c). The trial and appellate courts must each rule on bypass petitions within seven days. Ibid. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification. B Respondents are Dr. Wayne Goldner, an obstetrician and gynecologist who has a private practice in Manchester, and three clinics that offer reproductive health services. All provide abortions for pregnant minors, and each anticipates having to provide emergency abortions for minors in the future. Before the Act took effect, respondents brought suit under 42 U. S. C. §1983, alleging that the Act is unconstitutional because it fails “to allow a physician to provide a prompt abortion to a minor whose health would be endangered” by delays inherent in the Act. App. 10 (Complaint, ¶24). Respondents also challenged the adequacy of the Act’s life exception and of the judicial bypass’ confidentiality provision. The District Court declared the Act unconstitutional, see 28 U. S. C. §2201(a), and permanently enjoined its enforcement. It held, first, that the Act was invalid for failure “on its face … to comply with the constitutional requirement that laws restricting a woman’s access to abortion must provide a health exception.” Planned Parenthood of Northern New Eng. v. Heed, 296 F. Supp. 2d 59, 65 (NH 2003). It also found that the Act’s judicial bypass would not operate expeditiously enough in medical emergencies. In the alternative, the District Court held the Act’s life exception unconstitutional because it requires physicians to certify with impossible precision that an abortion is “necessary” to avoid death, and fails to protect their good faith medical judgment. The Court of Appeals for the First Circuit affirmed. Citing our decisions in Stenberg v. Carhart, 530 U. S. 914, 929–930 (2000), Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (1992) (plurality opinion), and Roe v. Wade, 410 U. S. 113, 164–165 (1973), it observed: “Complementing the general undue burden standard [for reviewing abortion regulations], the Supreme Court has also identified a specific and independent constitutional requirement that an abortion regulation must contain an exception for the preservation of the pregnant woman’s health.” Planned Parenthood of Northern New Eng. v. Heed, 390 F. 3d 53, 58 (2004). It went on to conclude that the Act is unconstitutional because it does not contain an explicit health exception, and its judicial bypass, along with other provisions of state law, is no substitute. The Court of Appeals further found the Act unconstitutional because, in its view, the life exception forces physicians to gamble with their patients’ lives by prohibiting them from performing an abortion without notification until they are certain that death is imminent, and is intolerably vague. Because the district and appellate courts permanently enjoined the Act’s enforcement on the basis of the above infirmities, neither reached respondents’ objection to the judicial bypass’ confidentiality provision. We granted certiorari, 544 U. S. __ (2005), to decide whether the courts below erred in invalidating the Act in its entirety because it lacks an exception for the preservation of pregnant minors’ health. We now vacate and remand for the Court of Appeals to reconsider its choice of remedy. II As the case comes to us, three propositions—two legal and one factual—are established. First, States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their “strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Hodgson v. Minnesota, 497 U. S. 417, 444–445 (1990) (opinion of Stevens, J.).[Footnote 1] Accordingly, we have long upheld state parental involvement statutes like the Act before us, and we cast no doubt on those holdings today. See, e.g., Lambert v. Wicklund, 520 U. S. 292 (1997) (per curiam); Casey, supra, at 899 (joint opinion); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 510–519 (1990); Hodgson, 497 U. S., at 461 (O’Connor, J., concurring in part and concurring in judgment in part); id., at 497–501 (Kennedy, J., concurring in judgment in part and dissenting in part).[Footnote 2] Second, New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are “ ‘necessary, in appropriate medical judgment, for preservation of the life or health of the mother.’ ” Casey, 505 U. S., at 879 (plurality opinion) (quoting Roe, 410 U. S., at 164–165); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 768–769 (1986); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 482–486 (1983) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 79 (1976). Third, New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health. See 296 F. Supp. 2d, at 65, n. 4. New Hampshire has maintained that in most if not all cases, the Act’s judicial bypass and the State’s “competing harms” statutes should protect both physician and patient when a minor needs an immediate abortion. See N. H. Rev. Stat. Ann. §627:3(I) (1996) (for criminal liability, “[c]onduct which the actor believes to be necessary to avoid harm to … another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged”); §627:1 (similar for civil liability). But the District Court and Court of Appeals found neither of these provisions to protect minors’ health reliably in all emergencies. 296 F. Supp. 2d, at 65–66; 390 F. 3d, at 61–62. And New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. See Reply Brief for Petitioner 2, 8, 11; Tr. of Oral Arg. 6, 14. III We turn to the question of remedy: When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, see United States v. Raines, 362 U. S. 17, 20–22 (1960), or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U. S. 220, 227–229 (2005). Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature’s work than is necessary, for we know that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion). It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.” Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289 (1921). Accordingly, the “normal rule” is that “partial, rather than facial, invalidation is the required course,” such that a “statute may … be declared invalid to the extent that it reaches too far, but otherwise left intact.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); see also Tennessee v. Garner, 471 U. S. 1 (1985); United States v. Grace, 461 U. S. 171, 180–183 (1983). Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180–183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself. We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid. Third, the touchstone for any decision about remedy is legislative intent, for a court cannot “use its remedial powers to circumvent the intent of the legislature.” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part); see also Dorchy v. Kansas, 264 U. S. 286, 289–290 (1924) (opinion for the Court by Brandeis, J.). After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally Booker, supra, at 227; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932); The Employers’ Liability Cases, 207 U. S. 463, 501 (1908); Allen v. Louisiana, 103 U. S. 80, 83–84 (1881); Trade-Mark Cases, 100 U. S. 82, 97–98 (1879). All the while, we are wary of legislatures who would rely on our intervention, for “[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside” to announce to whom the statute may be applied. United States v. Reese, 92 U. S. 214, 221 (1876). “This would, to some extent, substitute the judicial for the legislative department of the government.” Ibid. In this case, the courts below chose the most blunt remedy—permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely. That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called “partial birth abortion” unless the procedure was necessary to save the pregnant woman’s life. We held Nebraska’s law unconstitutional because it lacked a health exception. 530 U. S., at 930 (lack of a health exception was an “independent reaso[n]” for finding the ban unconstitutional). But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn. In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. Respondents, too, recognize the possibility of a modest remedy: They pleaded for any relief “just and proper,” App. 13 (Complaint), and conceded at oral argument that carefully crafted injunctive relief may resolve this case, Tr. of Oral Arg. 38, 40. Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application. There is some dispute as to whether New Hampshire’s legislature intended the statute to be susceptible to such a remedy. New Hampshire notes that the Act contains a severability clause providing that “[i]f any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications.” §132:28. Respondents, on the other hand, contend that New Hampshire legislators preferred no statute at all to a statute enjoined in the way we have described. Because this is an open question, we remand for the lower courts to determine legislative intent in the first instance. IV Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the Act’s life exception. We therefore need not pass on the lower courts’ alternative holding. Finally, if the Act does survive in part on remand, the Court of Appeals should address respondents’ separate objection to the judicial bypass’ confidentiality provision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Forty-four States, including New Hampshire, have parental involvement (that is, consent or notification) laws. Thirty-eight of those laws have explicit exceptions for health or medical emergencies. Ala. Code §26–21–5 (1992); Alaska Stat. §18.16.060 (2004); Ariz. Rev. Stat. Ann. §36–2152(G)(2) (West 2003); Ark. Code Ann. §§20–16–802(2), 20–16–805(1) (Supp. 2005); Cal. Health & Safety Code Ann. §123450 (West 1996); Colo. Rev. Stat. §12–37.5–103(5) (2004); Del. Code Ann., Tit. 24, §§1782(d), 1787 (1997); Fla. Stat. Ann. §§390.01114(2)(d), (3)(b) (West Supp. 2006); Ga. Code Ann. §15–11–116 (2005); Idaho Code §18–609A(1)(a)(v) (Lexis 2005); Ill. Comp. Stat., ch. 750, §70/10 (West 2004); Ind. Code §16–34–2–4 (West 2004); Iowa Code §135L.3 (2005); Kan. Stat. Ann. §65–6705(j)(1)(B) (2002); Ky. Rev. Stat. Ann. §§311.720, 311.732 (West Supp. 2005); La. Stat. Ann. §40:1299.35.12 (West Supp. 2005); Mass. Gen. Laws, ch. 112, §12S (West 2004); Mich. Comp. Laws §§722.902(b), 722.905 (2002); Miss. Code Ann. §41–41–57 (2005); Mont. Code Ann. §§50–20–203(5), 50–20–208 (2005); Neb. Rev. Stat. §71–6906(1) (2003); Nev. Rev. Stat. §442.255(1) (2003); N. J. Stat. Ann. §§9:17A–1.3, 9:17A–1.6 (West 2002); N. M. Stat. Ann. §30–5–1 (2004); N. C. Gen. Stat. Ann. §90–21.9 (Lexis 2003); N. D. Cent. Code Ann. §§14–02.1–03(1), 14–02.1–03.1(2) (Lexis 2004); Ohio Rev. Code Ann. §2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63, §1–740.2(B) (West Supp. 2006); 18 Pa. Cons. Stat. §§3203, 3206 (2002); R. I. Gen. Laws §23–4.7–4 (1996); S. C. Code Ann. §44–41–30(C)(1) (2002); 2005 S. D. Laws p. 189; Tenn. Code Ann. §37–10–305 (2005); Tex. Occ. Code Ann. §164.052(a)(19) (West Supp. 2005), Tex. S. B. 419 (2005); Utah Code Ann. §§76–7–301(2), 76–7–305 (Lexis Supp. 2005); Va. Code Ann. §18.2–76 (2004); W. Va. Code §16–2F–3 (Lexis 2001); Wis. Stat. §48.375 (2003–2004). Two States give physicians sufficient discretion to perform an abortion to protect minors’ health. Me. Rev. Stat. Ann., Tit. 22, §1597–A (2004); Md. Health Code Ann. §20–103 (2005). Four, including New Hampshire, make no exception for minors’ health in an emergency. N. H. Stat. §132:26 (2005); Minn. Stat. §144.343 (2004); Mo. Rev. Stat. §188.028 (2000); Wyo. Stat. Ann. §35–6–118 (2003). Footnote 2It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them “to exercise their rights wisely.” Hodgson, 497 U. S., at 444; see id., at 450–451 and n. 36 (holding unconstitutional a statute requiring notification of both parents, and observing that “the most common reason” young women did not notify a second parent was that the second parent “was a child- or spouse-batterer, and notification would have provoked further abuse” (citation omitted)). See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect).
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548.US.521
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Pennsylvania houses its 40 most dangerous and recalcitrant inmates in a Long Term Segregation Unit (LTSU). Inmates begin in level 2, which has the most severe restrictions, but may graduate to the less restrictive level 1. Plaintiff-respondent Banks, a level 2 inmate, filed this federal-court action against defendant-petitioner, the Secretary of the Department of Corrections, alleging that a level 2 policy (Policy) forbidding inmates any access to newspapers, magazines, and photographs violates the First Amendment. During discovery, Banks deposed Deputy Prison Superintendent Dickson and the parties introduced prison policy manuals and related documents into the record. The Secretary then filed a summary judgment motion, along with a statement of undisputed facts and the deposition. Rather than filing an opposition to the motion, Banks filed a cross-motion for summary judgment, relying on the undisputed facts, including those in the deposition. Based on this record, the District Court granted the Secretary’s motion and denied Banks’. Reversing the Secretary’s summary judgment award, the Third Circuit held that the prison regulation could not be supported as a matter of law. Held: The judgment is reversed, and the case is remanded. 399 F. 3d 134, reversed and remanded. Justice Breyer, joined by The Chief Justice, Justice Kennedy, and Justice Souter, concluded that, based on the record before this Court, prison officials have set forth adequate legal support for the Policy, and Banks has failed to show specific facts that could warrant a determination in his favor. Pp. 5–13. (a) Turner v. Safley, 482 U. S. 78, and Overton v. Bazzetta, 539 U. S. 126, contain the basic substantive legal standards covering this case. While imprisonment does not automatically deprive a prisoner of constitutional protections, Turner, 482 U. S., at 93, the Constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere, id., at 84–85. As Overton, supra, at 132, pointed out, courts also owe “substantial deference to the professional judgment of prison administrators.” Under Turner, restrictive prison regulations are permissible if they are “reasonably related to legitimate penological interests.” 482 U. S., at 89. Because this case is here on the Secretary’s summary judgment motion, the Court examines the record to determine whether he has demonstrated “the absence of a genuine issue of material fact” and his entitlement to judgment as a matter of law. See, e.g., Fed . Rule Civ. Proc. 56. If he has, the Court determines whether Banks has “by affidavits or as otherwise provided” in Rule 56, “set forth specific facts showing … a genuine issue for trial,” Rule 56(e). Inferences about disputed facts must be drawn in Banks’ favor, but deference must be accorded prison authorities’ views with respect to matters of professional judgment. Pp. 5–6. (b) The Secretary rested his motion primarily on the undisputed facts statement and Dickson’s affidavit. The first of his justifications for the Policy—the need to motivate better behavior on the part of particularly difficult prisoners—sufficiently satisfies Turner’s requirements. The statement and affidavit set forth a “ ‘valid, rational connection ’ ” between the Policy and “ ‘legitimate penological interests,’ ” 482 U. S., at 89, 95. Dickson noted that prison authorities are limited in what they can and cannot deny or give a level 2 inmate, who has already been deprived of most privileges, and that the officials believe that the specified items are legitimate as incentives for inmate growth. The undisputed facts statement added that the Policy encourages progress and discourages backsliding by level 1 inmates. These statements point to evidence that the regulations serve the function identified. The articulated connections between newspapers and magazines, the deprivation of virtually the last privilege left to an inmate, and a significant incentive to improve behavior, are logical ones. Thus, this factor supports the Policy’s “reasonableness.” The second, third, and fourth Turner factors—whether there are “alternative means of exercising the right that remain open to prison inmates,” id., at 90; the “impact” that accommodating “the asserted constitutional right [will] have on guards and other inmates, and on the allocation of prison resources,” ibid.; and whether there are “ready alternatives” for furthering the governmental interest, ibid.—add little to the first factor’s logical rationale here. That two of these three factors seem to favor the Policy therefore does not help the Secretary. The real task in this case is not balancing the Turner factors but determining whether the Secretary’s summary judgment material shows not just a logical relation but a reasonable relation. Given the deference courts must show to prison officials’ professional judgment, the material presented here is sufficient. Overton provides significant support for this conclusion. In both cases, the deprivations (family visits in Overton and access to newspapers, magazines, and photographs here) have an important constitutional dimension; prison officials have imposed the deprivation only upon those with serious prison-behavior problems; and those officials, relying on their professional judgment, reached an experience-based conclusion that the policies help to further legitimate prison objectives. Unless there is more, the Secretary’s supporting material brings the Policy within Turner’s scope. Pp. 6–10. (c) Although summary judgment rules gave Banks an opportunity to respond to these materials, he did not do so in the manner the rules provide. Instead, he filed a cross-motion for summary judgment, arguing that the Policy fell of its own weight. Neither the cases he cites nor the statistics he notes support his argument. In reaching a contrary conclusion, the Third Circuit placed too high an evidentiary burden on the Secretary and offered too little deference to the prison officials’ judgment. Such deference does not make it impossible for those attacking prison policies to succeed. A prisoner may be able to marshal substantial evidence, for example through depositions, that a policy is not reasonable or that there is a genuine issue of material fact for trial. And, as Overton noted, if faced with a de facto permanent ban involving a severe restriction, this Court might reach a different conclusion. Pp. 10–13. Justice Thomas, joined by Justice Scalia, concluded that, using the framework set forth in Justice Thomas’ concurrence in Overton v. Bazzetta, 539 U. S. 126, 138, Pennsylvania’s prison regulations are permissible. That framework provides the least perilous approach for resolving challenges to prison regulations and is the approach most faithful to the Constitution. “Sentencing a criminal to a term of imprisonment may … carry with it the implied delegation to prison officials to discipline and otherwise supervise the criminal while he is incarcerated.” Id., at 140, n. A term of imprisonment in Pennsylvania includes such an implied delegation. Inmates are subject to Department of Corrections rules and disciplinary rulings, and the challenged regulations fall with the Department’s discretion. This conclusion is supported by the plurality’s Turner v. Safley, 482 U. S. 78, analysis. The “history of incarceration as punishment [also] supports the view that the sentenc[e] … terminated” respondent’s unfettered right to magazines, newspapers, and photographs. Overton, 539 U. S., at 142. While Pennsylvania “is free to alter its definition of incarceration to include the retention” of unfettered access to such materials, it appears that the Commonwealth instead sentenced respondent against the backdrop of its traditional conception of imprisonment, which affords no such privileges. Id., at 144–145. Pp. 1–7. Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy and Souter, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Ginsburg, J., filed a dissenting opinion. Alito, J., took no part in the consideration or decision of the case.
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in which The Chief Justice, Justice Kennedy, and Justice Souter join. We here consider whether a Pennsylvania prison policy that “denies newspapers, magazines, and photographs” to a group of specially dangerous and recalcitrant inmates “violate[s] the First Amendment.” Brief for Petitioner i; see Turner v. Safley, 482 U. S. 78, 89 (1987) (prison rules restricting a prisoner’s constitutional rights must be “reasonably related to legitimate penological interests”). The case arises on a motion for summary judgment. While we do not deny the constitutional importance of the interests in question, we find, on the basis of the record now before us, that prison officials have set forth adequate legal support for the policy. And the plaintiff, a prisoner who attacks the policy, has failed to set forth “specific facts” that, in light of the deference that courts must show to the prison officials, could warrant a determination in his favor. Fed. Rule Civ. Proc. 56(e); Overton v. Bazzetta, 539 U. S. 126, 132 (2003) (need for “substantial deference to the professional judgment of prison administrators”). I A The prison regulation at issue applies to certain prisoners housed in Pennsylvania’s Long Term Segregation Unit. The LTSU is the most restrictive of the three special units that Pennsylvania maintains for difficult prisoners. The first such unit, the “Restricted Housing Unit,” is designed for prisoners who are under disciplinary sanction or who are assigned to administrative segregation. App. 80. The second such unit, the “Special Management Unit,” is intended for prisoners who “exhibit behavior that is continually disruptive, violent, dangerous or a threat to the orderly operation of their assigned facility.” Ibid. The third such unit, the LTSU, is reserved for the Commonwealth’s “most incorrigible, recalcitrant inmates.” Id., at 25. LTSU inmates number about 40. Id., at 127. Most, but not all, have “flunked out” of the SMU program. Id., at 137. To qualify, they must have met one or more of the following conditions: failure to “complete” the SMU program; “assaultive behavior with the intent to cause death or serious bodily injury”; causing injury to other inmates or staff; “engaging in facility disturbance(s)”; belonging to an unauthorized organization or “Security Threat Group”; engaging in criminal activity that “threatens the community”; possessing while in prison “weapons” or “implements of escape”; or having a history of “serious” escape attempts, “exerting negative influence in facility activities,” or being a “sexual predator.” Id., at 85–86. The LTSU is divided into two levels. All inmates are initially assigned to the most restrictive level, level 2. After 90 days, depending upon an inmate’s behavior, an individual may graduate to the less restrictive level 1, although in practice most do not. Id., at 131–132, 138. The RHU, SMU, and LTSU all seriously restrict inmates’ ordinary prison privileges. At all three units, residents are typically confined to cells for 23 hours a day, have limited access to the commissary or outside visitors, and (with the exception of some phases of the SMU) may not watch television or listen to the radio. Id., at 102; Brief for Petitioner 2–4. Prisoners at level 2 of the LTSU face the most severe form of the restrictions listed above. They have no access to the commissary, they may have only one visitor per month (an immediate family member), and they are not allowed phone calls except in emergencies. App. 102. In addition they (unlike all other prisoners in the Commonwealth) are restricted in the manner at issue here: They have no access to newspapers, magazines, or personal photographs. Id., at 26. They are nonetheless permitted legal and personal correspondence, religious and legal materials, two library books, and writing paper. Id., at 35, 102, 169. If an inmate progresses to level 1, he enjoys somewhat less severe restrictions, including the right to receive one newspaper and five magazines. Id., at 26, 102. The ban on photographs is not lifted unless a prisoner progresses out of the LTSU altogether. Ibid. B In 2001, plaintiff Ronald Banks, respondent here, then a prisoner confined to LTSU level 2, filed this federal-court action against Jeffrey Beard, the Secretary of the Pennsylvania Department of Corrections. See Rev. Stat. §1979, 42 U. S. C. §1983. Banks claimed that the level 2 Policy forbidding inmates all access to newspapers, magazines, and photographs bears no reasonable relation to any legitimate penological objective and consequently violates the First Amendment. App. 15; see also Turner, supra; Overton, supra. The Secretary, the defendant, petitioner here, filed an answer. The District Court certified a class composed of similar level 2 inmates, and the court assigned the case to a Magistrate who conducted discovery. Banks’ counsel deposed a deputy superintendent at the prison, Joel Dickson. The parties introduced various prison policy manuals and related documents into the record. And at that point the Secretary filed a motion for summary judgment. He also filed a “Statement of Material Facts Not in Dispute,” with a copy of the deputy superintendent’s deposition attached as an appendix. See App. 25; Rule 56.1(C)(1) (WD Pa. 2006). Banks (who was represented by counsel throughout) filed no opposition to the Secretary’s motion, but instead filed a cross-motion for summary judgment. Neither that cross-motion nor any other of Banks’ filings sought to place any significant fact in dispute, and Banks has never sought a trial to determine the validity of the Policy. Rather, Banks claimed in his cross-motion that the undisputed facts, including those in Dickson’s deposition, entitled him to summary judgment. In this way, and by failing specifically to challenge the facts identified in the defendant’s statement of undisputed facts, Banks is deemed to have admitted the validity of the facts contained in the Secretary’s statement. See Rule 56.1(E). On the basis of the record as described (the complaint, the answer, the statement of undisputed facts, other agreed-upon descriptions of the system, the Dickson deposition, and the motions for summary judgment), the Magistrate recommended that the District Court grant the Secretary’s motion for summary judgment and deny that of Banks. App. to Brief in Opposition 130. The District Court accepted the Magistrate’s recommendation. Id., at 131–132. On appeal, a divided Third Circuit panel reversed the District Court’s award of summary judgment to the Secretary. 399 F. 3d 134 (2005). The majority of the panel held that the prison regulation “cannot be supported as a matter of law by the record in this case.” Id., at 148; see also infra, at 14–15. The Secretary sought our review of the Appeals Court’s judgment, and we granted his petition. 546 U. S. ___ (2005). II Turner v. Safley, 482 U. S. 78 (1987), and Overton v. Bazzetta, 539 U. S.126 (2003), contain the basic substantive legal standards governing this case. This Court recognized in Turner that imprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment. Id., at 93; see also O’Lone v. Estate of Shabazz, 482 U. S. 342, 348 (1987). But at the same time the Constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere. See, e.g., Turner, supra, at 84–85. As Overton (summarizing pre-Turner case law) pointed out, courts owe “substantial deference to the professional judgment of prison administrators.” 539 U. S., at 132. And Turner reconciled these principles by holding that restrictive prison regulations are permissible if they are “‘reasonably related’ to legitimate penological interests,” 482 U. S., at 87, and are not an “exaggerated response” to such objectives, ibid. Turner also sets forth four factors “relevant in determining the reasonableness of the regulation at issue.” Id., at 89. First, is there a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it”? Ibid. Second, are there “alternative means of exercising the right that remain open to prison inmates”? Id., at 90. Third, what “impact” will “accommodation of the asserted constitutional right … have on guards and other inmates, and on the allocation of prison resources generally”? Ibid. And, fourth, are “ready alternatives” for furthering the governmental interest available? Ibid. This case has arrived in this Court in the context of the Secretary’s motion for summary judgment. Thus we must examine the record to see whether the Secretary, in depositions, answers to interrogatories, admissions, affidavits and the like, has demonstrated “the absence of a genuine issue of material fact” and his entitlement to judgment as a matter of law. See, e.g., Fed. Rule Civ. Proc. 56; Celotex Corp. v. Catrett, 477 U. S. 317 (1986). If the Secretary has done so, then we must determine whether Banks, the plaintiff, who bears the burden of persuasion, Overton, supra, at 132, has “by affidavits or as otherwise provided” in Rule 56 (e.g. through depositions, etc.) “set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e) (emphasis added). If not, the law requires entry of judgment in the Secretary’s favor. See Celotex Corp., supra, at 322 (Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). We recognize that at this stage we must draw “all justifiable inferences” in Banks’ “favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986). In doing so, however, we must distinguish between evidence of disputed facts and disputed matters of professional judgment. In respect to the latter, our inferences must accord deference to the views of prison authorities. Overton, supra. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage. III The Secretary in his motion set forth several justifications for the prison’s policy, including the need to motivate better behavior on the part of particularly difficult prisoners, the need to minimize the amount of property they control in their cells, and the need to assure prison safety, by, for example, diminishing the amount of material a prisoner might use to start a cell fire. We need go no further than the first justification, that of providing increased incentives for better prison behavior. Applying the well-established substantive and procedural standards set forth in Part II, we find, on the basis of the record before us, that the Secretary’s justification is adequate. And that finding here warrants summary judgment in the Secretary’s favor. A The Secretary rested his motion for summary judgment primarily upon the statement of undisputed facts along with Deputy Prison Superintendent Dickson’s affidavit. The statement of undisputed facts says that the LTSU’s 40 inmates, about 0.01 percent of the total prison population, constitute the “ ‘worst of the worst,’ ” those who “have proven by the history of their behavior in prison, the necessity of holding them in the rigorous regime of confinement” of the LTSU. App. 26. It then sets forth three “penological rationales” for the Policy, summarized from the Dickson deposition: (1) to “motivat[e]” better “behavior” on the part of these “particularly difficult prisoners,” by providing them with an incentive to move to level 1, or out of the LTSU altogether, and to “discourage backsliding” on the part of level 1 inmates; (2) to minimize the amount of property controlled by the prisoners, on the theory that the “less property these high maintenance, high supervision, obdurate troublemakers have, the easier it is for … correctional officer[s] to detect concealed contraband [and] to provide security”; and (3) to diminish the amount of material (in particular newspapers and magazines) that prisoners might use as weapons of attack in the form of “ ‘spears’ ” or “ ‘blow guns,’ ” or that they could employ “as tools to catapult feces at the guards without the necessity of soiling one’s own hands,” or use “as tinder for cell fires.” Id., at 27. As we have said we believe that the first rationale itself satisfies Turner’s requirements. First, the statement and deposition set forth a “ ‘valid, rational connection’ ” between the Policy and “ ‘legitimate penological objectives.’ ” 482 U. S., at 89, 95. The deputy superintendent stated in his deposition that prison authorities are “very limited … in what we can and cannot deny or give to [a level 2] inmate [who typically has already been deprived of almost all privileges, see supra, at 2–3], and these are some of the items that we feel are legitimate as incentives for inmate growth.” App. 190. The statement of undisputed facts (relying on the deposition) added that the Policy “serves to encourage … progress and discourage backsliding by the level 1 inmates.” Id., at 27. These statements point to evidence—namely, the views of the deputy superintendent—that the regulations do, in fact, serve the function identified. The articulated connections between newspapers and magazines, the deprivation of virtually the last privilege left to an inmate, and a significant incentive to improve behavior, are logical ones. Thus, the first factor supports the Policy’s “reasonableness.” As to the second factor, the statement and deposition make clear that, as long as the inmate remains at level 2, no “alternative means of exercising the right” remain open to him. Turner, supra, at 90. After 90 days the prisoner may be able to graduate to level 1 and thus regain his access to most of the lost rights. In the approximately 2 years after the LTSU opened, about 25 percent of those confined to level 2 did graduate to level 1 or out of the LTSU altogether. App. 138; Reply Brief for Petitioner 8. But these circumstances simply limit, they do not eliminate, the fact that there is no alternative. The absence of any alternative thus provides “some evidence that the regulations [a]re unreasonable,” but is not “conclusive” of the reasonableness of the Policy. Overton, 539 U. S., at 135. As to the third factor, the statement and deposition indicate that, were prison authorities to seek to “accommodat[e] . . . the asserted constitutional right,” the resulting “impact” would be negative. That circumstance is also inherent in the nature of the Policy: If the Policy (in the authorities’ view) helps to produce better behavior, then its absence (in the authorities’ view) will help to produce worse behavior, e.g., “backsliding” (and thus the expenditure of more “resources” at level 2). Turner, 482 U. S., at 90. Similarly, as to the fourth factor, neither the statement nor the deposition describes, points to, or calls to mind any “alternative method of accommodating the claimant’s constitutional complaint … that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests.” Id., at 90–91. In fact, the second, third, and fourth factors, being in a sense logically related to the Policy itself, here add little, one way or another, to the first factor’s basic logical rationale. See post, at 6 (opinion of Stevens, J.) (noting that “deprivation theory does not map easily onto several of the Turner factors”), cf. post, at 5-6 (opinion of Thomas, J.) (similar). The fact that two of these latter three factors seem to support the Policy does not, therefore, count in the Secretary’s favor. The real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a reasonable relation. We believe the material presented here by the prison officials is sufficient to demonstrate that the Policy is a reasonable one. Overton provides significant support for this conclusion. In Overton we upheld a prison’s “severe” restriction on the family visitation privileges of prisoners with repeat substance abuse violations. 539 U. S., at 134. Despite the importance of the rights there at issue, we held that withholding such privileges “is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose.” Ibid. The Policy and circumstances here are not identical, but we have not found differences that are significant. In both cases, the deprivations at issue (all visits with close family members; all access to newspapers, magazines, and photos) have an important constitutional dimension. In both cases, prison officials have imposed the deprivation at issue only upon those with serious prison-behavior problems (here the 40 most intractable inmates in the Commonwealth). In both cases, prison officials, relying on their professional judgment, reached an experience-based conclusion that the policies help to further legitimate prison objectives. The upshot is that, if we consider the Secretary’s supporting materials, i.e., the statement and deposition), by themselves, they provide sufficient justification for the Policy. That is to say, unless there is more, they bring the Policy within Turner’s legitimating scope. B Although summary judgment rules provided Banks with an opportunity to respond to the Secretary’s materials, he did not offer any fact-based or expert-based refutation in the manner the rules provide. Fed. Rule Civ. Proc. 56(e) (requiring plaintiff through, e.g., affidavits, etc., to “set forth specific facts showing that there is a genuine issue for trial” (emphasis added)). Instead, Banks filed his own cross-motion for summary judgment in which he claimed that the Policy fell of its own weight, i.e., that the Policy was “unreasonable as a matter of law.” Plaintiffs’ Brief in Support of Motion for Summary Judgment in C. A. 01–1956 (WD Pa.), p. 13 (hereinafter Plaintiffs’ Brief). In particular, Banks argued (and continues to argue) that the Policy lacks any significant incentive effect given the history of incorrigibility of the inmates concerned and the overall deprivations associated with the LTSU, Brief for Respondent 22; Plaintiffs’ Brief 13. He points in support to certain court opinions that he believes reflect expert views that favor his position. Abdul Wali v. Coughlin, 754 F. 2d 1015, 1034 (CA2 1985); Bieregu v. Reno, 59 F. 3d 1445, 1449 (CA3 1995); Knecht v. Collins, 903 F. Supp. 1193, 1200 (SD Ohio 1995), aff’d in part, rev’d in part, vacated in part, 187 F. 3d 636 (CA6 1999). And he adds that only about one-quarter of level 2 inmates graduate out of that environment. The cases to which Banks refers, however, simply point out that, in the view of some courts, increased contact with the world generally favors rehabilitation. See Abdul Wali, supra, at 1034; Bieregu, supra, at 1449; Knecht, supra, at 1200. That circumstance, as written about in court opinions, cannot provide sufficient support, particularly as these courts were not considering contexts such as this one, where prison officials are dealing with especially difficult prisoners. Neither can Banks find the necessary assistance in the fact that only one-quarter or so of the level 2 population graduates to level 1 or out of the LTSU. Given the incorrigibility of level 2 inmates—which petitioner himself admits—there is nothing to indicate that a 25 percent graduation rate is low, rather than, as the Secretary suggests, acceptably high. We recognize that the Court of Appeals reached a contrary conclusion. But in doing so, it placed too high an evidentiary burden upon the Secretary. In respect to behavior-modification incentives, for example, the court wrote that the “District Court did not examine … whether the ban was implemented in a way that could modify behavior, or inquire into whether the [Department of Corrections’] deprivation theory of behavior modification had any basis in real human psychology, or had proven effective with LTSU inmates.” 399 F. 3d, at 142. And, the court phrased the relevant conclusions in terms that placed a high summary judgment evidentiary burden upon the Secretary, i.e., the moving party. See, e.g., id., at 141 (“[W]e cannot say that the [defendant] has shown how the regulations in this case serve [an incentive-related] purpose”). The court’s statements and conclusions here also offer too little deference to the judgment of prison officials about such matters. The court, for example, offered no apparent deference to the deputy prison superintendent’s professional judgment that the Policy deprived “particularly difficult” inmates of a last remaining privilege and that doing so created a significant behavioral incentive. Contrary to Justice Ginsburg’s suggestion, post, at 2–4, we do not suggest that the deference owed prison authorities makes it impossible for prisoners or others attacking a prison policy like the present one ever to succeed or to survive summary judgment. After all, the constitutional interest here is an important one. Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective. A prisoner may be able to marshal substantial evidence that, given the importance of the interest, the Policy is not a reasonable one. Cf. 482 U. S., at 97–99 (striking down prison policy prohibiting prisoner marriages). And with or without the assistance that public interest law firms or clinics may provide, it is not inconceivable that a plaintiff’s counsel, through rigorous questioning of officials by means of depositions, could demonstrate genuine issues of fact for trial. Finally, as in Overton, we agree that “the restriction here is severe,” and “if faced with evidence that [it were] a de facto permanent ban . . . we might well reach a different conclusion in a challenge to a particular application of the regulation.” 539 U. S., at 134. That is not, however, the case before us. Here prison authorities responded adequately through their statement and deposition to the allegations in the complaint. And the plaintiff failed to point to “ ‘specific facts’ ” in the record that could “lead a rational trier of fact to find” in his favor. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986) (quoting Fed. Rule Civ. Proc. 56(e)). The judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings. It is so ordered. Justice Alito took no part in the consideration or decision of this case.
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547.US.398
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Responding to a 3 a.m. call about a loud party, police arrived at the house in question, heard shouting inside, proceeded down the driveway, and saw two juveniles drinking beer in the backyard. Entering the yard, they saw through a screen door and windows an altercation in the kitchen between four adults and a juvenile, who punched one of the adults, causing him to spit blood in a sink. An officer opened the screen door and announced the officers’ presence. Unnoticed amid the tumult, the officer entered the kitchen and again cried out, whereupon the altercation gradually subsided. The officers arrested respondents and charged them with contributing to the delinquency of a minor and related offenses. The trial court granted their motion to suppress all evidence obtained after the officers entered the home on the ground that the warrantless entry violated the Fourth Amendment, and the Utah Court of Appeals affirmed. Affirming, the State Supreme Court held that the injury caused by the juvenile’s punch was insufficient to trigger the “emergency aid doctrine” because it did not give rise to an objectively reasonable belief that an unconscious, semiconscious, or missing person feared injured or dead was in the home. Furthermore, the court suggested the doctrine was inapplicable because the officers had not sought to assist the injured adult but had acted exclusively in a law enforcement capacity. The court also held that the entry did not fall within the exigent circumstances exception to the warrant requirement. Held: Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. Because the Fourth Amendment’s ultimate touchstone is “reasonableness,” the warrant requirement is subject to certain exceptions. For example, one exigency obviating the requirement is the need to render emergency assistance to occupants of private property who are seriously injured or threatened with such injury. Mincey v. Arizona, 437 U. S. 385, 392. This Court has repeatedly rejected respondents’ contention that, in assessing the reasonableness of an entry, consideration should be given to the subjective motivations of individual officers. Because the officers’ subjective motivation is irrelevant, Bond v. United States, 529 U. S. 334, 338, n. 2, it does not matter here whether they entered the kitchen to arrest respondents and gather evidence or to assist the injured and prevent further violence. Indianapolis v. Edmond, 531 U. S. 32, 46, and Florida v. Wells, 495 U. S. 1, 4, distinguished. Relying on this Court’s holding in Welsh v. Wisconsin, 466 U. S. 740, 753, that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made,” respondents further contend that their conduct was not serious enough to justify the officers’ intrusion into the home. This contention is misplaced. In Welsh, the “only potential emergency” confronting the officers was the need to preserve evidence of the suspect’s blood-alcohol level, an exigency the Court held insufficient under the circumstances to justify a warrantless entry into the suspect’s home. Ibid. Here, the officers were confronted with ongoing violence occurring within the home, a situation Welsh did not address. The officers’ entry here was plainly reasonable under the circumstances. Given the tumult at the house when they arrived, it was obvious that knocking on the front door would have been futile. Moreover, in light of the fracas they observed in the kitchen, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious, semiconscious, or worse before entering. The manner of their entry was also reasonable, since nobody heard the first announcement of their presence, and it was only after the announcing officer stepped into the kitchen and announced himself again that the tumult subsided. That announcement was at least equivalent to a knock on the screen door and, under the circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to make them stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence. Pp. 3–7. 2005 UT 13, 122 P. 3d 506, reversed and remanded. Roberts, C. J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion.
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In this case we consider whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. We conclude that they may. I This case arises out of a melee that occurred in a Brigham City, Utah, home in the early morning hours of July 23, 2000. At about 3 a.m., four police officers responded to a call regarding a loud party at a residence. Upon arriving at the house, they heard shouting from inside, and proceeded down the driveway to investigate. There, they observed two juveniles drinking beer in the backyard. They entered the backyard, and saw—through a screen door and windows—an altercation taking place in the kitchen of the home. According to the testimony of one of the officers, four adults were attempting, with some difficulty, to restrain a juvenile. The juvenile eventually “broke free, swung a fist and struck one of the adults in the face.” 2005 UT 13, ¶2, 122 P. 3d 506, 508. The officer testified that he observed the victim of the blow spitting blood into a nearby sink. App. 40. The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor. At this point, an officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed. The officer entered the kitchen and again cried out, and as the occupants slowly became aware that the police were on the scene, the altercation ceased. The officers subsequently arrested respondents and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. In the trial court, respondents filed a motion to suppress all evidence obtained after the officers entered the home, arguing that the warrantless entry violated the Fourth Amendment. The court granted the motion, and the Utah Court of Appeals affirmed. Before the Supreme Court of Utah, Brigham City argued that although the officers lacked a warrant, their entry was nevertheless reasonable on either of two grounds. The court rejected both contentions and, over two dissenters, affirmed. First, the court held that the injury caused by the juvenile’s punch was insufficient to trigger the so-called “emergency aid doctrine” because it did not give rise to an “ objectively reasonable belief that an unconscious, semi-conscious, or missing person feared injured or dead [was] in the home.” 122 P. 3d, at 513 (internal quotation marks omitted). Furthermore, the court suggested that the doctrine was inapplicable because the officers had not sought to assist the injured adult, but instead had acted “exclusively in their law enforcement capacity.” Ibid. The court also held that the entry did not fall within the exigent circumstances exception to the warrant requirement. This exception applies, the court explained, where police have probable cause and where “a reasonable person [would] believe that the entry was necessary to prevent physical harm to the officers or other persons.” Id., at 514 (internal quotation marks omitted). Under this standard, the court stated, the potential harm need not be as serious as that required to invoke the emergency aid exception. Although it found the case “a close and difficult call,” the court nevertheless concluded that the officers’ entry was not justified by exigent circumstances. Id., at 515. We granted certiorari, 546 U. S. ___ (2006), in light of differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation. Compare In re Sealed Case 96–3167, 153 F. 3d 759, 766 (CADC 1998) (“[T]he standard for exigent circumstances is an objective one”) and People v. Hebert, 46 P. 3d 473, 480 (Colo. 2002) (en banc) (considering the circumstances as they “would have been objectively examined by a prudent and trained police officer”), with United States v. Cervantes, 219 F. 3d 882, 890 (CA9 2000) (“[U]nder the emergency doctrine, ‘[a] search must not be primarily motivated by intent to arrest and seize evidence’ ” (quoting People v. Mitchell, 39 N. Y. 2d 173, 177, 347 N. E. 2d 607, 609 (1976)) and State v. Mountford, 171 Vt. 487, 492, 769 A. 2d 639, 645 (2000) (Mitchell test “requir[es] courts to find that the primary subjective motivation behind such searches was to provide emergency aid”). II It is a “ ‘ basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” Groh v. Ramirez, 540 U. S. 551, 559 (2004) (quoting Payton v. New York, 445 U. S. 573, 586 (1980) (some internal quotation marks omitted)). Nevertheless, because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to certain exceptions. Flippo v. West Virginia, 528 U. S. 11, 13 (1999) (per curiam); Katz v. United States, 389 U. S. 347, 357 (1967). We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, Michigan v. Tyler, 436 U. S. 499, 509 (1978), to prevent the imminent destruction of evidence, Ker v. California, 374 U. S. 23, 40 (1963), or to engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U. S. 38, 42–43 (1976). “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U. S. 385, 393–394 (1978). One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. “ ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ ” Id., at 392 (quoting Wayne v. United States, 318 F. 2d 205, 212 (CADC 1963) (Burger, J.)); see also Tyler, supra, at 509. Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Mincey, supra, at 392; see also Georgia v. Randolph, 547 U. S. ___, ___ (2006) (slip op., at 13–14) (“[I]t would be silly to suggest that the police would commit a tort by entering … to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur”). Respondents do not take issue with these principles, but instead advance two reasons why the officers’ entry here was unreasonable. First, they argue that the officers were more interested in making arrests than quelling violence. They urge us to consider, in assessing the reasonableness of the entry, whether the officers were “indeed motivated primarily by a desire to save lives and property.” Brief for Respondents 3; see also Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 6 (entry to render emergency assistance justifies a search “only when the searching officer is acting outside his traditional law-enforcement capacity”). The Utah Supreme Court also considered the officers’ subjective motivations relevant. See 122 P. 3d, at 513 (search under the “emergency aid doctrine” may not be “primarily motivated by intent to arrest and seize evidence” (internal quotation marks omitted)). Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances, viewed objectively, justify [the] action.” Scott v. United States, 436 U. S. 128, 138 (1978) (emphasis added). The officer’s subjective motivation is irrelevant. See Bond v. United States, 529 U. S. 334, 338, n. 2 (2000) (“The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment … ; the issue is not his state of mind, but the objective effect of his actions”); Whren v. United States, 517 U. S. 806, 813 (1996) (“[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers”); Graham v. Connor, 490 U. S. 386, 397 (1989) (“[O]ur prior cases make clear” that “the subjective motivations of the individual officers … ha[ve] no bearing on whether a particular seizure is ‘unreasonable’ under the Fourth Amendment”). It therefore does not matter here—even if their subjective motives could be so neatly unraveled—whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence. As respondents note, we have held in the context of programmatic searches conducted without individualized suspicion—such as checkpoints to combat drunk driving or drug trafficking—that “an inquiry into programmatic purpose” is sometimes appropriate. Indianapolis v. Edmond, 531 U. S. 32, 46 (2000) (emphasis added); see also Florida v. Wells, 495 U. S. 1, 4 (1990) (an inventory search must be regulated by “standardized criteria” or “established routine” so as not to “be a ruse for a general rummaging in order to discover incriminating evidence”). But this inquiry is directed at ensuring that the purpose behind the program is not “ultimately indistinguishable from the general interest in crime control.” Edmond, 531 U. S., at 44. It has nothing to do with discerning what is in the mind of the individual officer conducting the search. Id., at 48. Respondents further contend that their conduct was not serious enough to justify the officers’ intrusion into the home. They rely on Welsh v. Wisconsin, 466 U. S. 740, 753 (1984), in which we held that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” This contention, too, is misplaced. Welsh involved a warrantless entry by officers to arrest a suspect for driving while intoxicated. There, the “only potential emergency” confronting the officers was the need to preserve evidence (i.e., the suspect’s blood-alcohol level)—an exigency that we held insufficient under the circumstances to justify entry into the suspect’s home. Ibid. Here, the officers were confronted with ongoing violence occurring within the home. Welsh did not address such a situation. We think the officers’ entry here was plainly reasonable under the circumstances. The officers were responding, at 3 o’clock in the morning, to complaints about a loud party. As they approached the house, they could hear from within “an altercation occurring, some kind of a fight.” App. 29. “It was loud and it was tumultuous.” Id., at 33. The officers heard “thumping and crashing” and people yelling “stop, stop” and “get off me.” Id., at 28, 29. As the trial court found, “it was obvious that … knocking on the front door” would have been futile. Id., at 92. The noise seemed to be coming from the back of the house; after looking in the front window and seeing nothing, the officers proceeded around back to investigate further. They found two juveniles drinking beer in the backyard. From there, they could see that a fracas was taking place inside the kitchen. A juvenile, fists clenched, was being held back by several adults. As the officers watch, he breaks free and strikes one of the adults in the face, sending the adult to the sink spitting blood. In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone “unconscious” or “semi-conscious” or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided. The manner of the officers’ entry was also reasonable. After witnessing the punch, one of the officers opened the screen door and “yelled in police.” Id., at 40. When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside. The officer’s announcement of his presence was at least equivalent to a knock on the screen door. Indeed, it was probably the only option that had even a chance of rising above the din. Under these circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence. Accordingly, we reverse the judgment of the Supreme Court of Utah, and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.
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546.US.212
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In convicting respondent Sanders of, inter alia, first-degree murder, the jury found four “special circumstances,” each of which rendered him death eligible under Cal. Penal Code Ann. §190.2. At the penalty phase, the jury was instructed to consider a list of sentencing factors, including “[t]he circumstances of the crime … and the existence of any special circumstances found to be true,” §190.3(a), and sentenced him to death. The State Supreme Court invalidated two of the special circumstances on direct appeal, but nonetheless affirmed the conviction and sentence. The Federal District Court subsequently denied Sanders habeas relief, rejecting his claim that the jury’s consideration of invalid special circumstances rendered his death sentence unconstitutional. Reversing, the Ninth Circuit applied the rules for “weighing” States, see Stringer v. Black, 503 U. S. 222, rather than “non-weighing” States, see Zant v. Stephens, 462 U. S. 862, and found that Sanders had been unconstitutionally deprived of an individualized death sentence. Held: 1. The requirement that States limit the class of murderers to which the death penalty may be applied, Furman v. Georgia, 408 U. S. 238 (per curiam), is usually met when the trier of fact finds at least one statutory eligibility factor at either the guilt or penalty phase. Once this narrowing requirement has been satisfied, the sentencer must determine whether an eligible defendant should receive the death penalty; many States channel this function by specifying aggravating factors (sometimes identical to the eligibility factors) that are to be weighed against mitigating considerations. In answering the question confronted here—what happens when the sentencer imposes the death penalty after finding a valid eligibility factor, but under a scheme in which another eligibility factor is later held invalid—this Court has set forth different rules for so-called weighing and non-weighing States. In a weighing State, the sentencer could consider as aggravation only specified eligibility factors. Where the sentencer relied on an eligibility factor that was later invalidated, the sentencer was erroneously invited to count the invalid factor as weighing in favor of death, thus “skewing” the weighing process, Stringer, supra, at 232. Such automatic skewing would not necessarily occur in a non-weighing State, however, which permitted the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors. This weighing/non-weighing scheme seems needlessly complex and incapable of providing for the full range of variations. This Court is henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. Pp. 3–9. 2. The jury’s consideration of invalid special circumstances in Sanders’ case gave rise to no constitutional violation. In California, the “special circumstances” listed in §190.2 are the eligibility factors designed to satisfy Furman’s narrowing requirement. If the jury finds the existence of one of those circumstances, it must “take into account” a separate list of sentencing factors, including §190.3(a)’s “circumstances of the crime” factor. That factor has the effect of rendering all the specified factors nonexclusive, thus making California (in this Court’s prior terminology) a non-weighing State. Setting aside the weighing/non-weighing dichotomy and applying the more direct analysis set out here, two of the four special circumstances were invalidated, but the remaining two are sufficient to satisfy Furman’s narrowing requirement and alone rendered Sanders death eligible. Moreover, all of the facts and circumstances admissible to prove the invalid eligibility factors were also properly adduced as aggravating facts and circumstances under the “circumstances of the crime” sentencing factor. Even if §190.3(a)’s direction to consider “the existence of any special circumstances found to be true” placed special emphasis upon the facts and circumstances relevant to the invalid factors, that impact “cannot fairly be regarded as a constitutional defect in the sentencing process,” Zant, supra, at 889. Pp. 9–12. 373 F. 3d 1054, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined.
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We consider the circumstances in which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury’s weighing process. I Respondent Ronald Sanders and a companion invaded the home of Dale Boender, where they bound and blindfolded him and his girlfriend, Janice Allen. Both of the victims were then struck on the head with a heavy, blunt object; Allen died from the blow. Sanders was convicted of first-degree murder, of attempt to murder Boender, and of robbery, burglary, and attempted robbery. Sanders’ jury found four “special circumstances” under California law, each of which independently rendered him eligible for the death penalty. See Cal. Penal Code Ann. §190.2 (West Supp. 1995). The trial then moved to a penalty phase, at which the jury was instructed to consider a list of sentencing factors relating to Sanders’ background and the nature of the crime, one of which was “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.” §190.3(a) (West 1999). The jury sentenced Sanders to death. On direct appeal, the California Supreme Court declared invalid two of the four special circumstances found by the jury. It nonetheless affirmed Sanders’ death sentence, relying on our decision in Zant v. Stephens, 462 U. S. 862 (1983), which, it said, “upheld a death penalty judgment despite invalidation of one of several aggravating factors.” People v. Sanders, 51 Cal. 3d 471, 520, 797 P. 2d 561, 589–590 (1990). It affirmed the conviction and sentence in all other respects. We denied certiorari. Sanders v. California, 500 U. S. 948 (1991). Sanders then filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254 in the United States District Court for the Eastern District of California, arguing, as relevant here, that the jury’s consideration of invalid special circumstances rendered his death sentence unconstitutional.[Footnote 1] After Sanders exhausted various state remedies, the District Court denied relief. The Court of Appeals for the Ninth Circuit reversed. Sanders v. Woodford, 373 F. 3d 1054 (2004). It concluded that “the California court erroneously believed that it could apply the rule of Zant v. Stephens, 462 U. S. 862 (1983)—which is applicable only to nonweighing states—and uphold the verdict despite the invalidation of two special circumstances because it was upholding other special circumstances.” Id., at 1064 (citations omitted). Finding California to be a weighing State, and applying the rules we have announced for such States, see Stringer v. Black, 503 U. S. 222, 232 (1992), the Ninth Circuit concluded that California courts could uphold Sanders’ death sentence only by finding the jury’s use of the invalid special circumstances to have been harmless beyond a reasonable doubt or by independently reweighing the sentencing factors under §190.3. Since, it continued, the state courts had done neither, Sanders had been unconstitutionally deprived of an “individualized death sentence.” 373 F. 3d, at 1064. We granted certiorari. 544 U. S. _____ (2005). II Since Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), we have required States to limit the class of murderers to which the death penalty may be applied. This narrowing requirement is usually met when the trier of fact finds at least one statutorily defined eligibility factor at either the guilt or penalty phase. See Tuilaepa v. California, 512 U. S. 967, 971–972 (1994).[Footnote 2] Once the narrowing requirement has been satisfied, the sentencer is called upon to determine whether a defendant thus found eligible for the death penalty should in fact receive it. Most States channel this function by specifying the aggravating factors (sometimes identical to the eligibility factors) that are to be weighed against mitigating considerations. The issue in the line of cases we confront here is what happens when the sentencer imposes the death penalty after at least one valid eligibility factor has been found, but under a scheme in which an eligibility factor or a specified aggravating factor is later held to be invalid. To answer that question, our jurisprudence has distinguished between so-called weighing and non-weighing States. The terminology is somewhat misleading, since we have held that in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably justify a death sentence against the defendant’s mitigating evidence. See, e.g., Eddings v. Oklahoma, 455 U. S. 104, 110 (1982). The terminology was adopted, moreover, relatively early in the development of our death-penalty jurisprudence, when we were perhaps unaware of the great variety of forms that state capital-sentencing legislation would ultimately take. We identified as “weighing State[s]” those in which the only aggravating factors permitted to be considered by the sentencer were the specified eligibility factors. See, e.g., Parker v. Dugger, 498 U. S. 308, 313, 318–319 (1991) (citing Fla. Stat. §921.141(3)(b) (1985)); Richmond v. Lewis, 506 U. S. 40, 47 (1992) (quoting Ariz. Rev. Stat. Ann. §13–703(E) (1989)). Since the eligibility factors by definition identified distinct and particular aggravating features, if one of them was invalid the jury could not consider the facts and circumstances relevant to that factor as aggravating in some other capacity—for example, as relevant to an omnibus “circumstances of the crime” sentencing factor such as the one in the present case. In a weighing State, therefore, the sentencer’s consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators, Stringer, 503 U. S., at 232, and required reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors), ibid. By contrast, in a non-weighing State—a State that permitted the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors—this automatic skewing would not necessarily occur. It would never occur if the aggravating factors were entirely different from the eligibility factors. Nor would it occur if the aggravating factors added to the eligibility factors a category (such as an omnibus “circumstances of the crime” factor, which is quite common) that would allow the very facts and circumstances relevant to the invalidated eligibility factor to be weighed in aggravation under a different rubric. We therefore set forth different rules governing the consequences of an invalidated eligibility factor in a non-weighing State.[Footnote 3] The sentencer’s consideration of an invalid eligibility factor amounts to constitutional error in a non-weighing State in two situations. First, due process requires a defendant’s death sentence to be set aside if the reason for the invalidity of the eligibility factor is that it “authorizes a jury to draw adverse inferences from conduct that is constitutionally protected,” or that it “attache[s] the ‘aggravating’ label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, … or to conduct that actually should militate in favor of a lesser penalty.” Zant, 462 U. S., at 885. Second, the death sentence must be set aside if the jury’s consideration of the invalidated eligibility factor allowed it to hear evidence that would not otherwise have been before it. See id., at 886; see also Tuggle v. Netherland, 516 U. S. 10, 13–14 (1995) (per curiam).[Footnote 4] This weighing/non-weighing scheme is accurate as far as it goes, but it now seems to us needlessly complex and incapable of providing for the full range of possible variations. For example, the same problem that gave rise to our weighing-State jurisprudence would arise if it were a sentencing factor, and not an eligibility factor, that was later found to be invalid. The weighing process would just as clearly have been prima facie “skewed,” and skewed for the same basic reason: The sentencer might have given weight to a statutorily or constitutionally invalid aggravator.[Footnote 5] And the prima facie skewing could in appropriate cases be shown to be illusory for the same reason that separates weighing States from non-weighing States: One of the other aggravating factors, usually an omnibus factor but conceivably another one, made it entirely proper for the jury to consider as aggravating the facts and circumstances underlying the invalidated factor. We think it will clarify the analysis, and simplify the sentence-invalidating factors we have hitherto applied to non-weighing States, see supra, at 5–6, if we are henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process[Footnote 6] unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. This test is not, as Justice Breyer describes it, “an inquiry based solely on the admissibility of the underlying evidence.” Post, at 15 (dissenting opinion). If the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been before it, due process would mandate reversal without regard to the rule we apply here. See supra, at 6; see also n. 6, this page.[Footnote 7] The issue we confront is the skewing that could result from the jury’s considering as aggravation properly admitted evidence that should not have weighed in favor of the death penalty. See, e.g., Stringer, 503 U. S., at 232 (“[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale.”). As we have explained, such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor. III In California, a defendant convicted of first-degree murder is eligible for the death penalty if the jury finds one of the “special circumstances” listed in Cal. Penal Code Ann. §190.2 (West Supp. 2005) to be true. These are the eligibility factors designed to satisfy Furman. See People v. Bacigalupo, 6 Cal. 4th 457, 467–468, 862 P. 2d 808, 813 (1993). If the jury finds the existence of one of the special circumstances, it is instructed to “take into account” a separate list of sentencing factors describing aspects of the defendant and the crime. Cal. Penal Code Ann. §190.3 (West 1999). These sentencing factors include, as we have said, “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding.” The Court of Appeals held that California is a weighing State because “ ‘the sentencer [is] restricted to a “weighing” of aggravation against mitigation’ and ‘the sentencer [is] prevented from considering evidence in aggravation other than discrete, statutorily-defined factors.’ ” 373 F. 3d, at 1061 (brackets in original) (quoting Williams v. Calderon, 52 F. 3d 1465, 1478 (CA9 1995)). The last statement is inaccurate. The “circumstances of the crime” factor can hardly be called “discrete.” It has the effect of rendering all the specified factors nonexclusive, thus causing California to be (in our prior terminology) a non-weighing State. Contrary to Sanders’ contention, and Justice Stevens’ views in dissent, the mere fact that the sentencing factors included “the existence of any special circumstances [eligibility factors] found to be true,” Cal. Penal Code Ann. §190.3(a), did not make California a weighing State. That fact was redundant for purposes of our weighing jurisprudence because it in no way narrowed the universe of aggravating facts the jury was entitled to consider in determining a sentence.[Footnote 8] But leaving aside the weighing/non-weighing dichotomy and proceeding to the more direct analysis set forth earlier in this opinion: All of the aggravating facts and circumstances that the invalidated factor permitted the jury to consider were also open to their proper consideration under one of the other factors. The erroneous factor could not have “skewed” the sentence, and no constitutional violation occurred. More specifically, Sanders’ jury found four special circumstances to be true: that “[t]he murder was committed while the defendant was engaged in … Robbery,” §190.2(a)(17)(A) (West Supp. 2005); that it was “committed while the defendant was engaged in … Burglary in the first or second degree,” §190.2(a)(17)(G); that “[t]he victim [Allen] was a witness to a crime who was intentionally killed for the purpose of preventing … her testimony in any criminal … proceeding,” §190.2(a)(10); and that “[t]he murder was especially heinous, atrocious, or cruel,” §190.2(a)(14). The California Supreme Court set aside the burglary-murder special circumstance under state merger law because the instructions permitted the jury to find a burglary (and thus the burglary-murder special circumstance) based on Sanders’ intent to commit assault, which is already an element of homicide, see People v. Wilson, 1 Cal. 3d 431, 439–440, 462 P. 2d 22, 27–28 (1969) (in banc). 51 Cal. 3d, at 517, 797 P. 2d, at 587. The court invalidated the “heinous, atrocious, or cruel” special circumstance because it had previously found that to be unconstitutionally vague. Id., at 520, 797 P. 2d, at 589 (citing People v. Superior Court, 31 Cal. 3d 797, 647 P. 2d 76 (1982)). As the California Supreme Court noted, however, “the jury properly considered two special circumstances [eligibility factors] (robbery-murder and witness-killing).” 51 Cal. 3d, at 520, 797 P. 2d, at 589–590. These are sufficient to satisfy Furman’s narrowing requirement, and alone rendered Sanders eligible for the death penalty. Moreover, the jury’s consideration of the invalid eligibility factors in the weighing process did not produce constitutional error because all of the facts and circumstances admissible to establish the “heinous, atrocious, or cruel” and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the “circumstances of the crime” sentencing factor. They were properly considered whether or not they bore upon the invalidated eligibility factors. See 51 Cal. 3d, at 521, 797 P. 2d, at 590. Sanders argues that the weighing process was skewed by the fact that the jury was asked to consider, as one of the sentencing factors, “the existence of any special circumstances [eligibility factors] found to be true.” Cal. Penal Code Ann. §190.3(a) (West 1999). In Sanders’ view, that placed special emphasis upon those facts and circumstances relevant to the invalid eligibility factor. Virtually the same thing happened in Zant. There the Georgia jury was permitted to “ ‘conside[r] all evidence in extenuation, mitigation and aggravation of punishment,’ ” 462 U. S., at 871–872 (quoting Zant v. Stephens, 250 Ga. 97, 99–100, 297 S. E. 2d 1, 3–4 (1982)), but also instructed specifically that it could consider “ ‘any of [the] statutory aggravating circumstances which you find are supported by the evidence,’ ” 462 U. S., at 866. This instruction gave the facts underlying the eligibility factors special prominence. Yet, even though one of the three factors (that the defendant had “substantial history of serious assaultive convictions,” id., at 867) was later invalidated, we upheld the sentence. We acknowledged that the erroneous instruction “might have caused the jury to give somewhat greater weight to respondent’s prior criminal record than it otherwise would have given,” id., at 888; indeed, we assumed such an effect, ibid. But the effect was “merely a consequence of the statutory label “aggravating circumstanc[e].’ ” We agreed with the Georgia Supreme Court that any such impact was “ ‘inconsequential,’ ” id., at 889, and held that it “cannot fairly be regarded as a constitutional defect in the sentencing process,” ibid. The same is true here. * * * Because the jury’s consideration of the invalid “special circumstances” gave rise to no constitutional violation, the Court of Appeals erred in ordering habeas relief. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Because Sanders filed his habeas petition before April 24, 1996, we do not apply the substantive review standards required by the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214. See Lindh v. Murphy, 521 U. S. 320, 327 (1997). Footnote 2 Our cases have frequently employed the terms “aggravating circumstance” or “aggravating factor” to refer to those statutory factors which determine death eligibility in satisfaction of Furman’s narrowing requirement. See, e.g., Tuilaepa v. California, 512 U. S., at 972. This terminology becomes confusing when, as in this case, a State employs the term “aggravating circumstance” to refer to factors that play a different role, determining which defendants eligible for the death penalty will actually receive that penalty. See Cal. Penal Code Ann. §190.3 (West 1999). To avoid confusion, this opinion will use the term “eligibility factor” to describe a factor that performs the constitutional narrowing function. Footnote 3 Justice Breyer contends that harmless-error review applies in both weighing and non-weighing States. See post, at 8–12 (dissenting opinion). It would be strange indeed to discover at this late stage that our long-held distinction between the two sorts of States for purposes of reviewing invalid eligibility factors in fact made no difference. Cf., e.g., Stringer v. Black, 503 U. S. 222, 232 (1992) (weighing/non-weighing distinction is “of critical importance”). Not surprisingly, the Courts of Appeals have uniformly understood that different rules apply to weighing and non-weighing States, and that harmless-error review is necessary only in the former. See, e.g., Sanders v. Woodford, 373 F. 3d 1054, 1059–1060 (CA9 2004); Flamer v. Delaware, 68 F. 3d 736, 746–749 (CA3 1995); Williams v. Cain, 125 F. 3d 269, 281 (CA5 1997). Our own cases, moreover, are flatly inconsistent with requiring harmless-error review in both types of States. As Justice Breyer notes, post, at 8, Zant v. Stephens, 462 U. S. 862 (1983), did endorse the Georgia Supreme Court’s holding that attaching the statutory label “aggravating” to the invalid eligibility factor had an “inconsequential impact on the jury’s decision regarding the death penalty,” id., at 889 (internal quotation marks omitted). But the core holding is what we said next: “More importantly, … any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process.” Ibid. (emphasis added); see also post, at 11–12. Zant must therefore be read not as holding that any constitutional error was harmless, but as rejecting respondent’s claim of constitutional error. Neither Clemons v. Mississippi, 494 U. S. 738 (1990), nor Stringer says anything to the contrary. Justice Breyer points out that Clemons’ harmless-error discussion focused on the emphasis given to the invalid factor, rather than on the fact that Mississippi is a weighing State, but that is hardly relevant: Our discussion of how harmless-error analysis should be conducted (the issue in the passage from Clemons that Justice Breyer cites, 494 U. S., at 753–754) says nothing about when that analysis should be conducted (the issue addressed by the weighing/non-weighing distinction). On the latter question, Clemons maintains the distinction envisioned in Zant, see 462 U. S., at 890–891, between Georgia (a non-weighing State) and Mississippi (a weighing State), see Clemons, supra, at 745. Likewise, Stringer specifically distinguishes between non-weighing States, in which “the fact that [the jury] also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty,” 503 U. S., at 232, and weighing States, in which “constitutional harmless-error analysis or reweighing at the trial or appellate level” is required, ibid. Footnote 4 The fact that a sentencer’s consideration of an invalid eligibility factor in a non-weighing State may nonetheless amount to constitutional error explains Tuggle’s characterization of Zant as holding “that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid,” 516 U. S., at 11 (emphasis added); cf. post, at 12 (Breyer, J., dissenting), as well as our related comment in Clemons that, “[i]n a [non-weighing] State like Georgia, . . . the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury,” 494 U. S., at 745 (emphasis added); cf. post, at 14–15 (Breyer, J., dissenting). Footnote 5 This very problem may have been present in Stringer v. Black, supra. There, although the Mississippi courts invalidated an aggravating circumstance—whether the murder was “especially heinous, atrocious, or cruel,” Miss. Code Ann. §99–19–101(h) (1993 Cum. Supp.)—that was not one of the specified eligibility factors, see §97–3–19(2) (1994), we nonetheless treated Mississippi as a weighing State. Since, however, Mississippi law provided that the jury could not impose a death sentence unless it found the existence of at least one statutory aggravating factor, see §99–19–101(3)(b) (1993 Cum. Supp.), it could be argued that the additional aggravating factors were converted into de facto eligibility factors. Footnote 6 There may be other distortions caused by the invalidated factor beyond the mere addition of an improper aggravating element. For example, what the jury was instructed to consider as an aggravating factor might have “actually . . . militate[d] in favor of a lesser penalty,” Zant, supra, at 885. See supra, at 5–6. Footnote 7 This explains the footnote in Clemons v. Mississippi, supra, at 754, n. 5, on which Justice Breyer relies, see post, at 14. That footnote addressed petitioner’s argument that the Mississippi Supreme Court had arbitrarily refused to order jury resentencing, even though it had done so in an earlier case, Johnson v. State, 511 So. 2d 1333 (1987), rev’d, 486 U. S. 578 (1988), on remand, 547 So. 2d 59 (1989). We distinguished the two cases, noting that in Johnson, “the jury was permitted to consider inadmissible evidence in determining the defendant’s sentence,” 494 U. S., at 754–755, n. 5, whereas in Clemons, “there is no serious suggestion that the State’s reliance on the [invalid] factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding,” id., at 755, n. 5. The crux of this distinction is that the sentencer’s consideration of improper evidence is an error distinct from the one at issue here and in Clemons, to-wit, the jury’s weighing in favor of death a factor that should not have been part of its calculus. Footnote 8 Justice Stevens argues that §190.3(a) may have affected the jury’s deliberations in other ways, but we rejected each of these theories in Zant v. Stephens, 462 U. S. 862 (1983). The possibility that the jury would “coun[t] the nature of the crime twice,” post, at 2 (Stevens, J., dissenting), if it were instructed to consider both the facts of the crime and the eligibility circumstances was present in Zant. The jury there was told it could take into account all relevant circumstances, but also—much like the jury here—was instructed to consider “ ‘any of [the] statutory aggravating circumstances [i.e., eligibility factors] which you find are supported by the evidence.’ ” 462 U. S., at 866. Likewise, the jury in Zant might have “give[n] greater weight,” post, at 2 (Stevens, J., dissenting), to the facts underlying the eligibility circumstances, but we explicitly held that any such effect “cannot fairly be regarded as a constitutional defect in the sentencing process,” 462 U. S., at 889. See infra, at 11–12.
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546.US.440
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For each deferred-payment transaction respondents entered into with Buckeye Check Cashing, they signed an Agreement containing provisions that required binding arbitration to resolve disputes arising out of the Agreement. Respondents sued in Florida state court, alleging that Buckeye charged usurious interest rates and that the Agreement violated various Florida laws, rendering it criminal on its face. The trial court denied Buckeye’s motion to compel arbitration, holding that a court rather than an arbitrator should resolve a claim that a contract is illegal and void ab initio. A state appellate court reversed, but was in turn reversed by the Florida Supreme Court, which reasoned that enforcing an arbitration agreement in a contract challenged as unlawful would violate state public policy and contract law. Held: Regardless of whether it is brought in federal or state court, a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must go to the arbitrator, not the court. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, and Southland Corp. v. Keating, 465 U. S. 1, answer the question presented here by establishing three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. See Prima Paint, 388 U. S., at 400, 402–404. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. See id., at 403–404. Third, this arbitration law applies in state as well as federal courts. See Southland, supra, at 12. The crux of respondents’ claim is that the Agreement as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge. Because this challenges the Agreement, and not specifically its arbitration provisions, the latter are enforceable apart from the remainder of the contract, and the challenge should be considered by an arbitrator, not a court. The Florida Supreme Court erred in declining to apply Prima Paint’s severability rule, and respondents’ assertion that that rule does not apply in state court runs contrary to Prima Paint and Southland. Pp. 3–8. 894 So. 2d 860, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., took no part in the consideration or decision of the case.
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We decide whether a court or an arbitrator should consider the claim that a contract containing an arbitration provision is void for illegality. I Respondents John Cardegna and Donna Reuter entered into various deferred-payment transactions with petitioner Buckeye Check Cashing (Buckeye), in which they received cash in exchange for a personal check in the amount of the cash plus a finance charge. For each separate transaction they signed a “Deferred Deposit and Disclosure Agreement” (Agreement), which included the following arbitration provisions: “1. Arbitration Disclosure By signing this Agreement, you agree that i[f] a dispute of any kind arises out of this Agreement or your application therefore or any instrument relating thereto, th[e]n either you or we or third-parties involved can choose to have that dispute resolved by binding arbitration as set forth in Paragraph 2 below … . 2. Arbitration Provisions Any claim, dispute, or controversy … arising from or relating to this Agreement … or the validity, enforceability, or scope of this Arbitration Provision or the entire Agreement (collectively ‘Claim’), shall be resolved, upon the election of you or us or said third-parties, by binding arbitration … . This arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (‘FAA’), 9 U. S. C. Sections 1–16. The arbitrator shall apply applicable substantive law constraint [sic] with the FAA and applicable statu[t]es of limitations and shall honor claims of privilege recognized by law … .” Respondents brought this putative class action in Florida state court, alleging that Buckeye charged usurious interest rates and that the Agreement violated various Florida lending and consumer-protection laws, rendering it criminal on its face. Buckeye moved to compel arbitration. The trial court denied the motion, holding that a court rather than an arbitrator should resolve a claim that a contract is illegal and void ab initio. The District Court of Appeal of Florida for the Fourth District reversed, holding that because respondents did not challenge the arbitration provision itself, but instead claimed that the entire contract was void, the agreement to arbitrate was enforceable, and the question of the contract’s legality should go to the arbitrator. Respondents appealed, and the Florida Supreme Court reversed, reasoning that to enforce an agreement to arbitrate in a contract challenged as unlawful “ ‘could breathe life into a contract that not only violates state law, but also is criminal in nature … .’ ” 894 So. 2d 860, 862 (2005) (quoting Party Yards, Inc. v. Templeton, 751 So. 2d 121, 123 (Fla. App. 2000)). We granted certiorari. 545 U. S. ___ (2005). II A To overcome judicial resistance to arbitration, Congress enacted the Federal Arbitration Act (FAA), 9 U. S. C. §§1–16. Section 2 embodies the national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts: “A written provision in … a contract … to settle by arbitration a controversy thereafter arising out of such contract … or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Challenges to the validity of arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract” can be divided into two types. One type challenges specifically the validity of the agreement to arbitrate. See, e.g., Southland Corp. v. Keating, 465 U. S. 1, 4–5 (1984) (challenging the agreement to arbitrate as void under California law insofar as it purported to cover claims brought under the state Franchise Investment Law). The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid.[Footnote 1] Respondents’ claim is of this second type. The crux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967), we addressed the question of who—court or arbitrator—decides these two types of challenges. The issue in the case was “whether a claim of fraud in the inducement of the entire contract is to be resolved by the federal court, or whether the matter is to be referred to the arbitrators.” Id., at 402. Guided by §4 of the FAA,[Footnote 2] we held that “if the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the making of the agreement to arbitrate—the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally.” Id., at 403–404 (internal quotation marks and footnote omitted). We rejected the view that the question of “severability” was one of state law, so that if state law held the arbitration provision not to be severable a challenge to the contract as a whole would be decided by the court. See id., at 400, 402–403. Subsequently, in Southland Corp., we held that the FAA “create[d] a body of federal substantive law,” which was “applicable in state and federal court.” 465 U. S., at 12 (internal quotation marks omitted). We rejected the view that state law could bar enforcement of §2, even in the context of state-law claims brought in state court. See id., at 10–14; see also Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 270–273 (1995). B Prima Paint and Southland answer the question presented here by establishing three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts. The parties have not requested, and we do not undertake, reconsideration of those holdings. Applying them to this case, we conclude that because respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court. In declining to apply Prima Paint’s rule of severability, the Florida Supreme Court relied on the distinction between void and voidable contracts. “Florida public policy and contract law,” it concluded, permit “no severable, or salvageable, parts of a contract found illegal and void under Florida law.” 894 So. 2d, at 864. Prima Paint makes this conclusion irrelevant. That case rejected application of state severability rules to the arbitration agreement without discussing whether the challenge at issue would have rendered the contract void or voidable. See 388 U. S., at 400–404. Indeed, the opinion expressly disclaimed any need to decide what state-law remedy was available, id., at 400, n. 3, (though Justice Black’s dissent asserted that state law rendered the contract void, id., at 407). Likewise in Southland, which arose in state court, we did not ask whether the several challenges made there—fraud, misrepresentation, breach of contract, breach of fiduciary duty, and violation of the California Franchise Investment Law—would render the contract void or voidable. We simply rejected the proposition that the enforceability of the arbitration agreement turned on the state legislature’s judgment concerning the forum for enforcement of the state-law cause of action. See 465 U. S., at 10. So also here, we cannot accept the Florida Supreme Court’s conclusion that enforceability of the arbitration agreement should turn on “Florida public policy and contract law,” 894 So. 2d, at 864. C Respondents assert that Prima Paint’s rule of severability does not apply in state court. They argue that Prima Paint interpreted only §§3 and 4—two of the FAA’s procedural provisions, which appear to apply by their terms only in federal court—but not §2, the only provision that we have applied in state court. This does not accurately describe Prima Paint. Although §4, in particular, had much to do with Prima Paint’s understanding of the rule of severability, see 388 U. S., at 403–404, this rule ultimately arises out of §2, the FAA’s substantive command that arbitration agreements be treated like all other contracts. The rule of severability establishes how this equal-footing guarantee for “a written [arbitration] provision” is to be implemented. Respondents’ reading of Prima Paint as establishing nothing more than a federal-court rule of procedure also runs contrary to Southland’s understanding of that case. One of the bases for Southland’s application of §2 in state court was precisely Prima Paint’s “reli[ance] for [its] holding on Congress’ broad power to fashion substantive rules under the Commerce Clause.” 465 U. S., at 11; see also Prima Paint, supra, at 407 (Black, J., dissenting) (“[t]he Court here holds that the [FAA], as a matter of federal substantive law …” (emphasis added)). Southland itself refused to “believe Congress intended to limit the Arbitration Act to disputes subject only to federal-court jurisdiction.” 465 U. S., at 15. Respondents point to the language of §2, which renders “valid, irrevocable, and enforceable” “a written provision in” or “an agreement in writing to submit to arbitration an existing controversy arising out of” a “contract.” Since, respondents argue, the only arbitration agreements to which §2 applies are those involving a “contract,” and since an agreement void ab initio under state law is not a “contract,” there is no “written provision” in or “controversy arising out of” a “contract,” to which §2 can apply. This argument echoes Justice Black’s dissent in Prima Paint: “Sections 2 and 3 of the Act assume the existence of a valid contract. They merely provide for enforcement where such a valid contract exists.” 388 U. S., at 412–413. We do not read “contract” so narrowly. The word appears four times in §2. Its last appearance is in the final clause, which allows a challenge to an arbitration provision “upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis added.) There can be no doubt that “contract” as used this last time must include contracts that later prove to be void. Otherwise, the grounds for revocation would be limited to those that rendered a contract voidable—which would mean (implausibly) that an arbitration agreement could be challenged as voidable but not as void. Because the sentence’s final use of “contract” so obviously includes putative contracts, we will not read the same word earlier in the same sentence to have a more narrow meaning.[Footnote 3] We note that neither Prima Paint nor Southland lends support to respondents’ reading; as we have discussed, neither case turned on whether the challenge at issue would render the contract voidable or void. * * * It is true, as respondents assert, that the Prima Paint rule permits a court to enforce an arbitration agreement in a contract that the arbitrator later finds to be void. But it is equally true that respondents’ approach permits a court to deny effect to an arbitration provision in a contract that the court later finds to be perfectly enforceable. Prima Paint resolved this conundrum—and resolved it in favor of the separate enforceability of arbitration provisions. We reaffirm today that, regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 The issue of the contract’s validity is different from the issue of whether any agreement between the alleged obligor and obligee was ever concluded. Our opinion today addresses only the former, and does not speak to the issue decided in the cases cited by respondents (and by the Florida Supreme Court), which hold that it is for courts to decide whether the alleged obligor ever signed the contract, Chastain v. Robinson-Humphrey Co., 957 F. 2d 851 (CA11 1992), whether the signor lacked authority to commit the alleged principal, Sandvik AB v. Advent Int’l Corp., 220 F. 3d 99 (CA3 2000); Sphere Drake Ins. Ltd. v. All American Ins. Co., 256 F. 3d 587 (CA7 2001), and whether the signor lacked the mental capacity to assent, Spahr v. Secco, 330 F. 3d 1266 (CA10 2003). Footnote 2 In pertinent part, §4 reads: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court [with jurisdiction] … for an order directing that such arbitration proceed in a manner provided for in such agreement … . [U]pon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement … .” Footnote 3 Our more natural reading is confirmed by the use of the word “contract” elsewhere in the United States Code to refer to putative agreements, regardless of whether they are legal. For instance, the Sherman Act, 26 Stat. 209, as amended, states that “[e]very contract, combination … , or conspiracy in restraint of trade … is hereby declared to be illegal.” 15 U. S. C. §1. Under respondents’ reading of “contract,” a bewildering circularity would result: A contract illegal because it was in restraint of trade would not be a “contract” at all, and thus the statutory prohibition would not apply.
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548.US.53
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Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on “race, color, religion, sex, or national origin,” 42 U. S. C. §2000e–2(a), and its anti-retaliation provision forbids “discriminat[ion] against” an employee or job applicant who, inter alia, has “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation, §2000e–3(a). Respondent White, the only woman in her department, operated the forklift at the Tennessee Yard of petitioner Burlington Northern & Santa Fe Railway Co. (Burlington). After she complained, her immediate supervisor was disciplined for sexual harassment, but she was removed from forklift duty to standard track laborer tasks. She filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the reassignment was unlawful gender discrimination and retaliation for her complaint. Subsequently, she was suspended without pay for insubordination. Burlington later found that she had not been insubordinate, reinstated her, and awarded her backpay for the 37 days she was suspended. The suspension led to another EEOC retaliation charge. After exhausting her administrative remedies, White filed an action against Burlington in federal court claiming, as relevant here, that Burlington’s actions in changing her job responsibilities and suspending her for 37 days amounted to unlawful retaliation under Title VII. A jury awarded her compensatory damages. In affirming, the Sixth Circuit applied the same standard for retaliation that it applies to a substantive discrimination offense, holding that a retaliation plaintiff must show an “adverse employment action,” defined as a “materially adverse change in the terms and conditions” of employment. The Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation. Held: 1. The anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. The language of the substantive and anti-retaliation provisions differ in important ways. The terms “hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,” and “status as an employee” explicitly limit the substantive provision’s scope to actions that affect employment or alter workplace conditions. The anti-retaliation provision has no such limiting words. This Court presumes that, where words differ as they do here, Congress has acted intentionally and purposely. There is strong reason to believe that Congress intended the differences here, for the two provisions differ not only in language but also in purpose. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their status, while the anti-retaliation provision seeks to prevent an employer from interfering with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. To secure the first objective, Congress needed only to prohibit employment-related discrimination. But this would not achieve the second objective because it would not deter the many forms that effective retaliation can take, therefore failing to fully achieve the anti-retaliation provision’s purpose of “[m]aintaining unfettered access to statutory remedial mechanisms,” Robinson v. Shell Oil Co., 519 U. S. 337, 346. Thus, purpose reinforces what the language says, namely, that the anti-retaliation provision is not limited to actions affecting employment terms and conditions. Neither this Court’s precedent nor the EEOC’s interpretations support a contrary conclusion. Nor is it anomalous to read the statute to provide broader protection for retaliation victims than for victims of discrimination. Congress has provided similar protection from retaliation in comparable statutes. And differences in the purpose of the two Title VII provisions remove any perceived “anomaly,” for they justify this difference in interpretation. Pp. 6–12. 2. The anti-retaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or applicant. This Court agrees with the Seventh and District of Columbia Circuits that the proper formulation requires a retaliation plaintiff to show that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Rochon v. Gonzales, 438 F. 3d 1211, 1219. The Court refers to material adversity to separate significant from trivial harms. The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms by prohibiting employer actions that are likely to deter discrimination victims from complaining to the EEOC, the courts, and employers. Robinson, supra, at 346. The Court refers to a reasonable employee’s reactions because the provision’s standard for judging harm must be objective, and thus judicially administrable. The standard is phrased in general terms because the significance of any given act of retaliation may depend upon the particular circumstances. Pp. 12–15. 3. Applying the standard to the facts of this case, there was a sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim. Contrary to Burlington’s claim, a reassignment of duties can constitute retaliatory discrimination where both the former and present duties fall within the same job description. Almost every job category involves some duties that are less desirable than others. That is presumably why the EEOC has consistently recognized retaliatory work assignments as forbidden retaliation. Here, the jury had considerable evidence that the track laborer duties were more arduous and dirtier than the forklift operator position, and that the latter position was considered a better job by male employees who resented White for occupying it. Based on this record, a jury could reasonably conclude that the reassignment would have been materially adverse to a reasonable employee. Burlington also argues that the 37-day suspension without pay lacked statutory significance because White was reinstated with backpay. The significance of the congressional judgment that victims of intentional discrimination can recover compensatory and punitive damages to make them whole would be undermined if employers could avoid liability in these circumstances. Any insufficient evidence claim is unconvincing. White received backpay, but many reasonable employees would find a month without pay a serious hardship. White described her physical and emotional hardship to the jury, noting that she obtained medical treatment for emotional distress. An indefinite suspension without pay could well act as a deterrent to the filing of a discrimination complaint, even if the suspended employee eventually receives backpay. Thus, the jury’s conclusion that the suspension was materially adverse was reasonable. Pp. 15–18. 364 F. 3d 789, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Alito, J., filed an opinion concurring in the judgment.
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Title VII of the Civil Rights Act of 1964 forbids employment discrimination against “any individual” based on that individual’s “race, color, religion, sex, or national origin.” Pub. L. 88–352, §704, 78 Stat. 257, as amended, 42 U. S. C. §2000e–2(a). A separate section of the Act—its anti-retaliation provision—forbids an employer from “discriminat[ing] against” an employee or job applicant because that individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. §2000e–3(a). The Courts of Appeals have come to different conclusions about the scope of the Act’s anti-retaliation provision, particularly the reach of its phrase “discriminate against.” Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope? We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. I A This case arises out of actions that supervisors at petitioner Burlington Northern & Santa Fe Railway Company took against respondent Sheila White, the only woman working in the Maintenance of Way department at Burlington’s Tennessee Yard. In June 1997, Burlington’s roadmaster, Marvin Brown, interviewed White and expressed interest in her previous experience operating forklifts. Burlington hired White as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White’s primary responsibility. In September 1997, White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training session. On September 26, Brown told White about Joiner’s discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to perform only standard track laborer tasks. Brown explained that the reassignment reflected co-worker’s complaints that, in fairness, a “ ‘more senior man’ ” should have the “less arduous and cleaner job” of forklift operator. 364 F. 3d 789, 792 (CA6 2004) (case below). On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commission). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activities. That charge was mailed to Brown on December 8. A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her backpay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension. B After exhausting administrative remedies, White filed this Title VII action against Burlington in federal court. As relevant here, she claimed that Burlington’s actions—(1) changing her job responsibilities, and (2) suspending her for 37 days without pay—amounted to unlawful retaliation in violation of Title VII. §2000e–3(a). A jury found in White’s favor on both of these claims. It awarded her $43,500 in compensatory damages, including $3,250 in medical expenses. The District Court denied Burlington’s post-trial motion for judgment as a matter of law. See Fed. Rule Civ. Proc. 50(b). Initially, a divided Sixth Circuit panel reversed the judgment and found in Burlington’s favor on the retaliation claims. 310 F. 3d 443 (2002). The full Court of Appeals vacated the panel’s decision, however, and heard the matter en banc. The court then affirmed the District Court’s judgment in White’s favor on both retaliation claims. While all members of the en banc court voted to uphold the District Court’s judgment, they differed as to the proper standard to apply. Compare 364 F. 3d, at 795–800, with id., at 809 (Clay, J., concurring). II Title VII’s anti-retaliation provision forbids employer actions that “discriminate against” an employee (or job applicant) because he has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” §2000e–3(a). No one doubts that the term “discriminate against” refers to distinctions or differences in treatment that injure protected individuals. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005); Price Waterhouse v. Hopkins, 490 U. S. 228, 244 (1989) (plurality opinion); see also 4 Oxford English Dictionary 758 (2d ed. 1989) (def. 3b). But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation. Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment. 364 F. 3d, at 795 (internal quotation marks omitted). The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must “resul[t] in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” Von Gunten v. Maryland, 243 F. 3d 858, 866 (CA4 2001); see Robinson v. Pittsburgh, 120 F. 3d 1286, 1300 (CA3 1997). The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an “ultimate employment decisio[n]” standard, which limits actionable retaliatory conduct to acts “ ‘such as hiring, granting leave, discharging, promoting, and compensating.’ ” Mattern v. Eastman Kodak Co., 104 F. 3d 702, 707 (CA5 1997); see Manning v. Metropolitan Life Ins. Co., 127 F. 3d 686, 692 (CA8 1997). Other Circuits have not so limited the scope of the provision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee,” which in contexts like the present one means that it would likely have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Washington v. Illinois Dept. of Revenue, 420 F. 3d 658, 662 (CA7 2005); see Rochon v. Gonzales, 438 F. 3d 1211, 1217–1218 (CADC 2006). And the Ninth Circuit, following EEOC guidance, has said that the plaintiff must simply establish “ ‘adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.’ ” Ray v. Henderson, 217 F. 3d 1234, 1242–1243 (CA9 2000). The concurring judges below would have applied this last mentioned standard. 364 F. 3d, at 809 (opinion of Clay, J.). We granted certiorari to resolve this disagreement. To do so requires us to decide whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. And we must characterize how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope. A Petitioner and the Solicitor General both argue that the Sixth Circuit is correct to require a link between the challenged retaliatory action and the terms, conditions, or status of employment. They note that Title VII’s substantive anti-discrimination provision protects an individual only from employment-related discrimination. They add that the anti-retaliation provision should be read in pari materia with the anti-discrimination provision. And they conclude that the employer actions prohibited by the anti-retaliation provision should similarly be limited to conduct that “affects the employee’s ‘compensation, terms, conditions, or privileges of employment.’ ” Brief for United States as Amicus Curiae 13 (quoting §2000e–2(a)(1)); see Brief for Petitioner 13 (same). We cannot agree. The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section 703(a) sets forth Title VII’s core anti-discrimination provision in the following terms: “It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a) (emphasis added). Section 704(a) sets forth Title VII’s anti-retaliation provision in the following terms: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” §2000e–3(a) (emphasis added). The underscored words in the substantive provision—“hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,” and “status as an employee”—explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read in pari materia to mean the same thing. See, e.g., Pasquantino v. United States, 544 U. S. 349, 355, n. 2 (2005); McFarland v. Scott, 512 U. S. 849, 858 (1994); Sullivan v. Everhart, 494 U. S. 83, 92 (1990). Rather, the question is whether Congress intended its different words to make a legal difference. We normally presume that, where words differ as they differ here, “ ‘Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U. S. 16, 23 (1983). There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800–801 (1973). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision’s basic objective of “equality of employment opportunities” and the elimination of practices that tend to bring about “stratified job environments,” id., at 800, would be achieved were all employment-related discrimination miraculously eliminated. But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g., Rochon v. Gonzales, 438 F. 3d, at 1213 (FBI retaliation against employee “took the form of the FBI’s refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,” namely, “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U. S. 337, 346 (1997). Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S. ___ (2006) (slip op., at 14) (rejecting statutory construction that would “trea[t] venue and subject-matter jurisdiction prescriptions as in pari materia” because doing so would “overloo[k] the discrete offices of those concepts”). Our precedent does not compel a contrary conclusion. Indeed, we have found no case in this Court that offers petitioner or the United States significant support. Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), as petitioner notes, speaks of a Title VII requirement that violations involve “tangible employment action” such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id., at 761. But Ellerth does so only to “identify a class of [hostile work environment] cases” in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors. Id., at 760; see also Pennsylvania State Police v. Suders, 542 U. S. 129, 143 (2004) (explaining holdings in Ellerth and Faragher v. Boca Raton, 524 U. S. 775 (1998), as dividing hostile work environment claims into two categories, one in which the employer is strictly liable because a tangible employment action is taken and one in which the employer can make an affirmative defense). Ellerth did not discuss the scope of the general anti-discrimination provision. See 524 U. S., at 761 (using “concept of a tangible employment action [that] appears in numerous cases in the Courts of Appeals” only “for resolution of the vicarious liability issue”). And Ellerth did not mention Title VII’s anti-retaliation provision at all. At most, Ellerth sets forth a standard that petitioner and the Solicitor General believe the anti-retaliation provision ought to contain. But it does not compel acceptance of their view. Nor can we find significant support for their view in the EEOC’s interpretations of the provision. We concede that the EEOC stated in its 1991 and 1988 Compliance Manuals that the anti-retaliation provision is limited to “adverse employment-related action.” 2 EEOC Compliance Manual §614.1(d), p. 614–5 (1991) (hereinafter EEOC 1991 Manual); EEOC Compliance Manual §614.1(d), p. 614–5 (1988) (hereinafter EEOC 1988 Manual). But in those same manuals the EEOC lists the “[e]ssential [e]lements” of a retaliation claim along with language suggesting a broader interpretation. EEOC 1991 Manual §614.3(d), pp. 614–8 to 614–9 (complainant must show “that (s)he was in some manner subjected to adverse treatment by the respondent because of the protest or opposition”); EEOC 1988 Manual §614.3(d), pp. 614–8 to 614–9 (same). Moreover, both before and after publication of the 1991 and 1988 manuals, the EEOC similarly expressed a broad interpretation of the anti-retaliation provision. Compare EEOC Interpretive Manual, Reference Manual to Title VII Law for Compliance Personnel §491.2 (1972) (hereinafter 1972 Reference Manual) (§704(a) “is intended to provide ‘exceptionally broad protection’ for protestors of discriminatory employment practices”), with 2 EEOC Compliance Manual §8, p. 8–13 (1998) (hereinafter EEOC 1998 Manual), available at http://www.eeoc.gov/policy/docs/ retal.html (as visited June 20, 2006, and available in Clerk of Court’s case file) (§704(a) “prohibit[s] any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity”). And the EEOC 1998 Manual, which offers the Commission’s only direct statement on the question of whether the anti-retaliation provision is limited to the same employment-related activity covered by the anti-discrimination provision, answers that question in the negative—directly contrary to petitioner’s reading of the Act. Ibid. Finally, we do not accept the petitioner’s and Solicitor General’s view that it is “anomalous” to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion-based, or gender-based discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14–15. Congress has provided similar kinds of protection from retaliation in comparable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited by the primary substantive provisions. The National Labor Relations Act, to which this Court has “drawn analogies … in other Title VII contexts,” Hishon v. King & Spalding, 467 U. S. 69, 76, n. 8 (1984), provides an illustrative example. Compare 29 U. S. C. §158(a)(3) (substantive provision prohibiting employer “discrimination in regard to … any term or condition of employment to encourage or discourage membership in any labor organization”) with §158(a)(4) (retaliation provision making it unlawful for an employer to “discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter”); see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 740 (1983) (construing anti-retaliation provision to “prohibi[t] a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities,” including the retaliatory filing of a lawsuit against an employee); NLRB v. Scrivener, 405 U. S. 117, 121–122 (1972) (purpose of the anti-retaliation provision is to ensure that employees are “ ‘completely free from coercion against reporting’ ” unlawful practices). In any event, as we have explained, differences in the purpose of the two provisions remove any perceived “anomaly,” for they justify this difference of interpretation. See supra, at 8–9. Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. “Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960). Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act’s primary objective depends. For these reasons, we conclude that Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called “ultimate employment decisions.” See supra, at 5. B The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Appeals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. We agree with the formulation set forth by the Seventh and the District of Columbia Circuits. In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662). We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998); see Faragher, 524 U. S., at 788 (judicial standards for sexual harassment must “filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing’ ”). An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that “courts have held that personality conflicts at work that generate antipathy” and “ ‘snubbing’ by supervisors and co-workers” are not actionable under §704(a)). The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms. Robinson, 519 U. S., at 346. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers. Ibid. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual §8, p. 8–13. We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., Suders, 542 U. S., at 141 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (hostile work environment doctrine). We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, supra, at 81–82. A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child). A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. See 2 EEOC 1998 Manual §8, p. 8–14. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington, supra, at 661. Finally, we note that contrary to the claim of the concurrence, this standard does not require a reviewing court or jury to consider “the nature of the discrimination that led to the filing of the charge.” Post, at 6 (Alito, J., concurring in judgment). Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination. III Applying this standard to the facts of this case, we believe that there was a sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 150–151 (2000). The jury found that two of Burlington’s actions amounted to retaliation: the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspension without pay. Burlington does not question the jury’s determination that the motivation for these acts was retaliatory. But it does question the statutory significance of the harm these acts caused. The District Court instructed the jury to determine whether respondent “suffered a materially adverse change in the terms or conditions of her employment,” App. 63, and the Sixth Circuit upheld the jury’s finding based on that same stringent interpretation of the anti-retaliation provision (the interpretation that limits §704 to the same employment-related conduct forbidden by §703). Our holding today makes clear that the jury was not required to find that the challenged actions were related to the terms or conditions of employment. And insofar as the jury also found that the actions were “materially adverse,” its findings are adequately supported. First, Burlington argues that a reassignment of duties cannot constitute retaliatory discrimination where, as here, both the former and present duties fall within the same job description. Brief for Petitioner 24–25. We do not see why that is so. Almost every job category involves some responsibilities and duties that are less desirable than others. Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable. That is presumably why the EEOC has consistently found “[r]etaliatory work assignments” to be a classic and “widely recognized” example of “forbidden retaliation.” 2 EEOC 1991 Manual §614.7, pp. 614–31 to 614–32; see also 1972 Reference Manual §495.2 (noting Commission decision involving an employer’s ordering an employee “to do an unpleasant work assignment in retaliation” for filing racial discrimination complaint); EEOC Dec. No. 74–77, 1974 WL 3847, *4 (Jan. 18, 1974) (“Employers have been enjoined” under Title VII “from imposing unpleasant work assignments upon an employee for filing charges”). To be sure, reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’ ” Oncale, 523 U. S., at 81. But here, the jury had before it considerable evidence that the track labor duties were “by all accounts more arduous and dirtier”; that the “forklift operator position required more qualifications, which is an indication of prestige”; and that “the forklift operator position was objectively considered a better job and the male employees resented White for occupying it.” 364 F. 3d, at 803 (internal quotation marks omitted). Based on this record, a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee. Second, Burlington argues that the 37-day suspension without pay lacked statutory significance because Burlington ultimately reinstated White with backpay. Burlington says that “it defies reason to believe that Congress would have considered a rescinded investigatory suspension with full back pay” to be unlawful, particularly because Title VII, throughout much of its history, provided no relief in an equitable action for victims in White’s position. Brief for Petitioner 36. We do not find Burlington’s last mentioned reference to the nature of Title VII’s remedies convincing. After all, throughout its history, Title VII has provided for injunctions to “bar like discrimination in the future,” Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975) (internal quotation marks omitted), an important form of relief. Pub. L. 88–352, §706(g), 78 Stat. 261, as amended, 42 U. S. C. §2000e–5(g). And we have no reason to believe that a court could not have issued an injunction where an employer suspended an employee for retaliatory purposes, even if that employer later provided backpay. In any event, Congress amended Title VII in 1991 to permit victims of intentional discrimination to recover compensatory (as White received here) and punitive damages, concluding that the additional remedies were necessary to “ ‘help make victims whole.’ ” West v. Gibson, 527 U. S. 212, 219 (1999) (quoting H. R. Rep. No. 102–40, pt. 1, pp. 64–65 (1991)); see 42 U. S. C. §§1981a(a)(1), (b). We would undermine the significance of that congressional judgment were we to conclude that employers could avoid liability in these circumstances. Neither do we find convincing any claim of insufficient evidence. White did receive backpay. But White and her family had to live for 37 days without income. They did not know during that time whether or when White could return to work. Many reasonable employees would find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days of having “no income, no money” in fact caused. 1 Tr. 154 (“That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad. … I got very depressed”). Indeed, she obtained medical treatment for her emotional distress. A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay. Cf. Mitchell, 361 U. S., at 292 (“[I]t needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions”). Thus, the jury’s conclusion that the 37-day suspension without pay was materially adverse was a reasonable one. IV For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered.
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546.US.356
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The Bankruptcy Clause, Art. I, §8, cl. 4, empowers Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” In Tennessee Student Assistance Corporation v. Hood, 541 U. S. 440, this Court, without reaching the question whether the Clause gives Congress the authority to abrogate States’ immunity from private suits, see id., at 443, upheld the application of the Bankruptcy Code, 11 U. S. C. §101 et seq., to proceedings initiated by a debtor against a state agency to determine the dischargeability of a student loan debt, see 541 U. S., at 451. In this case, a proceeding commenced by respondent Bankruptcy Trustee under §§547(b) and 550(a) to avoid and recover alleged preferential transfers by the debtor to petitioner state agencies, the agencies claim that the proceeding is barred by sovereign immunity. The Bankruptcy Court denied petitioners’ motions to dismiss on that ground, and the District Court and the Sixth Circuit affirmed based on the Circuit’s prior determination that Congress has abrogated the States’ sovereign immunity in bankruptcy proceedings. Held: A bankruptcy trustee’s proceeding to set aside the debtor’s preferential transfers to state agencies is not barred by sovereign immunity. Pp. 3–22. (a) The Bankruptcy Clause’s history, the reasons it was adopted, and the legislation proposed and enacted under it immediately following ratification demonstrate that it was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena. Although statements in Seminole Tribe of Fla. v. Florida, 517 U. S. 44, reflect an assumption that that case’s holding would apply to the Clause, careful study and reflection convince this Court that that assumption was erroneous. The Court is not bound to follow its dicta in a prior case in which the point at issue was not fully debated. Cohens v. Virginia, 6 Wheat. 264, 399–400. Pp. 4–5. (b) States, whether or not they choose to participate, are bound by a bankruptcy court’s order discharging the debtor no less than are other creditors. Hood, 541 U. S., at 448. Petitioners here, like the state agency parties in Hood, have conceded as much. See id., at 449. The history of discharges in bankruptcy proceedings demonstrates that these concessions, and Hood’s holding, are correct. The Framers’ primary goal in adopting the Clause was to prevent competing sovereigns’ interference with discharge: The patchwork of wildly divergent and uncoordinated insolvency and bankruptcy laws that existed in the American Colonies resulted in one jurisdiction’s imprisoning debtors discharged (from prison and of their debts) in and by another jurisdiction. The absence of extensive debate at the Convention over the Clause’s text or its insertion into the Constitution indicates that there was general agreement on the importance of authorizing a uniform federal response to the problems and injustice that system created. Pp. 5–11. (c) Bankruptcy jurisdiction, as understood today and at the framing, is principally in rem. See, e.g., Hood, 541 U. S., at 447. It thus does not implicate States’ sovereignty to nearly the same degree as other kinds of jurisdiction. See id., at 450–451. The Framers would have understood the Bankruptcy Clause’s grant of power to enact laws on the entire “subject of Bankruptcies” to include laws providing, in certain limited respects, for more than simple adjudications of rights in the res. Courts adjudicating disputes concerning bankrupts’ estates historically have had the power to issue ancillary orders enforcing their in rem adjudications. See, e.g., id., at 455–456. The interplay between in rem adjudications and orders ancillary thereto is also evident in this case. Whether or not actions such as this are properly characterized as in rem, those who crafted the Bankruptcy Clause would have understood it to give Congress the power to authorize courts to avoid preferential transfers and to recover the transferred property. Pp. 12–15. (d) Insofar as orders ancillary to the bankruptcy courts’ in rem jurisdiction, like orders directing turnover of preferential transfers, implicate States’ sovereign immunity from suit, the States agreed in the plan of the Constitutional Convention not to assert that immunity. That is evidenced not only by the Bankruptcy Clause’s history, but also by legislation considered and enacted in the immediate wake of the Constitution’s ratification. For example, the Bankruptcy Act of 1800 specifically granted federal courts habeas authority to release debtors from state prisons at a time when state sovereign immunity was preeminent among the Nation’s concerns, yet there appears to be no record of any objection to that grant based on an infringement of sovereign immunity. This history demonstrates that the power to enact bankruptcy legislation was understood to carry with it the power to subordinate state sovereignty, albeit within a limited sphere. Pp. 15–21. (e) The Court need not consider the question Hood left open: whether Congress’ attempt to “abrogat[e]” state sovereign immunity in 11 U. S. C. §106(a) is valid. The relevant question is not abrogation, but whether Congress’ determination that States should be amenable to preferential transfer proceedings is within the scope of its power to enact “Laws on the subject of Bankruptcies.” Beyond peradventure, it is. Congress’ power, at its option, either to treat States in the same way as other creditors or exempt them from the operation of bankruptcy laws arises from the Clause itself; the relevant “abrogation” is the one effected in the plan of the Convention, not by statute. Pp. 21–22. 106 Fed. Appx. 341, affirmed. Stevens, J., delivered the opinion of the Court, in which O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Kennedy, JJ., joined.
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Article I, §8, cl. 4, of the Constitution provides that Congress shall have the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” In Tennessee Student Assistance Corporation v. Hood, 541 U. S. 440 (2004), we granted certiorari to determine whether this Clause gives Congress the authority to abrogate States’ immunity from private suits. See id., at 443. Without reaching that question, we upheld the application of the Bankruptcy Code to proceedings initiated by a debtor against a state agency to determine the dischargeability of a student loan debt. See id., at 451. In this case we consider whether a proceeding initiated by a bankruptcy trustee to set aside preferential transfers by the debtor to state agencies is barred by sovereign immunity. Relying in part on our reasoning in Hood, we reject the sovereign immunity defense advanced by the state agencies. I Petitioners are Virginia institutions of higher education that are considered “arm[s] of the State” entitled to sovereign immunity. See, e.g., Alden v. Maine, 527 U. S. 706, 756 (1999) (observing that only arms of the State can assert the State’s immunity). Wallace’s Bookstores, Inc., did business with petitioners before it filed a petition for relief under chapter 11 of the Bankruptcy Code, 11 U. S. C. §101 et seq. (2000 ed. and Supp. III), in the United States Bankruptcy Court for the Eastern District of Kentucky. Respondent, Bernard Katz, is the court-appointed liquidating supervisor of the bankrupt estate. He has commenced proceedings in the Bankruptcy Court pursuant to §§547(b) and 550(a) to avoid and recover alleged preferential transfers to each of the petitioners made by the debtor when it was insolvent.[Footnote 1] Petitioners’ motions to dismiss those proceedings on the basis of sovereign immunity were denied by the Bankruptcy Court. The denial was affirmed by the District Court and the Court of Appeals for the Sixth Circuit on the authority of the Sixth Circuit’s prior determination that Congress has abrogated the States’ sovereign immunity in bankruptcy proceedings. See Hood v. Tennessee Student Assistance Corporation (In re Hood), 319 F. 3d 755 (2003). We granted certiorari, 544 U. S. ___ (2005), to consider the question left open by our opinion in Hood: whether Congress’ attempt to abrogate state sovereign immunity in 11 U. S. C. §106(a)[Footnote 2] is valid. As we shall explain, however, we are persuaded that the enactment of that provision was not necessary to authorize the Bankruptcy Court’s jurisdiction over these preference avoidance proceedings. Bankruptcy jurisdiction, at its core, is in rem. See Gardner v. New Jersey, 329 U. S. 565, 574 (1947) (“The whole process of proof, allowance, and distribution is, shortly speaking, an adjudication of interests claimed in a res”). As we noted in Hood, it does not implicate States’ sovereignty to nearly the same degree as other kinds of jurisdiction. See 541 U. S., at 450–451 (citing admiralty and bankruptcy cases). That was as true in the 18th century as it is today. Then, as now, the jurisdiction of courts adjudicating rights in the bankrupt estate included the power to issue compulsory orders to facilitate the administration and distribution of the res. It is appropriate to presume that the Framers of the Constitution were familiar with the contemporary legal context when they adopted the Bankruptcy Clause[Footnote 3]—a provision which, as we explain in Part IV, infra, reflects the States’ acquiescence in a grant of congressional power to subordinate to the pressing goal of harmonizing bankruptcy law sovereign immunity defenses that might have been asserted in bankruptcy proceedings. The history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena. Foremost on the minds of those who adopted the Clause were the intractable problems, not to mention the injustice, created by one State’s imprisoning of debtors who had been discharged (from prison and of their debts) in and by another State. As discussed below, to remedy this problem, the very first Congresses considered, and the Sixth Congress enacted, bankruptcy legislation authorizing federal courts to, among other things, issue writs of habeas corpus directed at state officials ordering the release of debtors from state prisons. We acknowledge that statements in both the majority and the dissenting opinions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), reflected an assumption that the holding in that case would apply to the Bankruptcy Clause. See also Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 105 (1989) (O’Connor, J., concurring). Careful study and reflection have convinced us, however, that that assumption was erroneous. For the reasons stated by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated. See id., at 399–400 (“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision”). II Critical features of every bankruptcy proceeding are the exercise of exclusive jurisdiction over all of the debtor’s property, the equitable distribution of that property among the debtor’s creditors, and the ultimate discharge that gives the debtor a “fresh start” by releasing him, her, or it from further liability for old debts. See, e.g., Local Loan Co. v. Hunt, 292 U. S. 234, 244 (1934). “Under our longstanding precedent, States, whether or not they choose to participate in the proceeding, are bound by a bankruptcy court’s discharge order no less than other creditors.” Hood, 541 U. S., at 448. Petitioners here, like the state agencies that were parties in Hood, have conceded as much. See id., at 449 (noting concession that “States are generally bound by a bankruptcy court’s discharge order”); Tr. of Oral Arg. 8–9 (Oct. 31, 2005). The history of discharges in bankruptcy proceedings demonstrates that the state agencies’ concessions, and Hood’s holding, are correct. The term “discharge” historically had a dual meaning; it referred to both release of debts and release of the debtor from prison. Indeed, the earliest English statutes governing bankruptcy and insolvency authorized discharges of persons, not debts. One statute enacted in 1649 was entitled “An act for discharging Poor Prisoners unable to satisfy their creditors.” See 2 Acts and Ordinances of the Interregnum, 1642–1660, pp. 240–241 (C. Firth & R. Rait eds. 1911). The stated purpose of the Act was to “Discharge … the person of [the] Debtor” “of and from his or her Imprisonment.” Ibid. Not until 1705 did the English Parliament extend the discharge (and then only for traders and merchants) to include release of debts. See 4 Ann., ch. 17, §7 (providing that upon compliance with the statute, “all and every person and persons so becoming bankrupt . . . shall be discharged from all debts by him, her, or them due and owing at the time that he, she, or they did become bankrupt”); see also McCoid, Discharge: The Most Important Development in Bankruptcy History, 70 Am. Bankr. L. J. 163, 167 (1996). Well into the 18th century, imprisonment for debt was still ubiquitous in England[Footnote 4] and the American Colonies. Bankruptcy and insolvency laws remained as much concerned with ensuring full satisfaction of creditors (and, relatedly, preventing debtors’ flight to parts unknown[Footnote 5]) as with securing new beginnings for debtors. Illustrative of bankruptcy laws’ harsh treatment of debtors during this period was that debtors often fared worse than common criminals in prison; unfortunate insolvents, unlike criminals, were forced to provide their own food, fuel, and clothing while behind bars. See B. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 78–108 (2002). Common as imprisonment itself was, the American Colonies, and later the several States, had wildly divergent schemes for discharging debtors and their debts. Id., at 79 (“The only consistency among debt laws in the eighteenth century was that every colony, and later every state, permitted imprisonment for debt—most on mesne process, and all on execution of a judgment”). At least four jurisdictions offered relief through private Acts of their legislatures. See Railway Labor Executives’ Assn. v. Gibbons, 455 U. S. 457, 472 (1982). Those Acts released debtors from prison upon surrender of their property, and many coupled the release from prison with a discharge of debts. Other jurisdictions enacted general laws providing for release from prison and, in a few places, discharge of debt. Others still granted release from prison, but only in exchange for indentured servitude. Some jurisdictions provided no relief at all for the debtor. See generally P. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900 (1999).[Footnote 6] The difficulties posed by this patchwork of insolvency and bankruptcy laws were peculiar to the American experience. In England, where there was only one sovereign, a single discharge could protect the debtor from his jailer and his creditors. As two cases—one litigated before the Constitutional Convention in Philadelphia and one litigated after it—demonstrate, however, the uncoordinated actions of multiple sovereigns, each laying claim to the debtor’s body and effects according to different rules, rendered impossible so neat a solution on this side of the Atlantic. In the first case, James v. Allen, 1 Dall. 188 (C. P. Phila. Cty. 1786), Jared Ingersoll, an attorney who a year later would become a delegate to the Philadelphia Convention,[Footnote 7] represented a Pennsylvania creditor seeking recovery from a debtor who had been released from prison in New Jersey. Shortly after his release, the debtor traveled to Pennsylvania, where he was arrested for nonpayment of the Pennsylvania debt. In seeking release from the Pennsylvania prison, he argued that his debt had been discharged by the New Jersey court. Ingersoll responded that the order granting relief under New Jersey’s insolvency laws “only discharged the person of the debtor from arrest within the State of New Jersey.” Id., at 190. The court agreed: Whatever effect the order might have had in New Jersey, the court said, it “goes no further than to discharge [the debtor] from his imprisonment in the Gaol of Essex County in the State of New Jersey; which, if the fullest obedience were paid to it, could not authorize a subsequent discharge from imprisonment in another Gaol, in another State.” Id., at 192. The court further observed that “[i]nsolvent laws subsist in every State in the Union, and are probably all different from each other … . Even the Bankrupt Laws of England, while we were the subjects of that country, were never supposed to extend here, so as to exempt the persons of the Bankrupts from being arrested.” Id., at 191. In the second case, Millar v. Hall, 1 Dall. 229 (Pa. 1788), which was decided the year after the Philadelphia Convention, Ingersoll found himself arguing against the principle announced in James. His client, a debtor named Hall, had been “discharged under an insolvent law of the state of Maryland, which is in the nature of a general bankrupt[cy] law.” 1 Dall., at 231. Prior to his discharge, Hall had incurred a debt to a Pennsylvanian named Millar. Hall neglected to mention that debt in his schedule of creditors presented to the Maryland court, or to personally notify Millar of the looming discharge. Following the Maryland court’s order, Hall traveled to Pennsylvania and was promptly arrested for the unpaid debt to Millar. Responding to Millar’s counsel’s argument that the holding of James controlled, Ingersoll urged adoption of a rule that “the discharge of the Defendant in one state ought to be sufficient to discharge [a debtor] in every state.” 1 Dall., at 231. Absent such a rule, Ingersoll continued, “perpetual imprisonment must be the lot of every man who fails; and all hope of retrieving his losses by honest and industrious pursuits, will be cut off from the unfortunate bankrupt.” Ibid. The court accepted this argument. Allowing a creditor to execute “upon [a debtor’s] person out of the state in which he has been discharged,” the court explained, “would be giving a superiority to some creditors, and affording them a double satisfaction—to wit, a proportionable dividend of his property there, and the imprisonment of his person here.” Id., at 232. Indeed, the debtor having already been obliged to surrender all of his effects, “to permit the taking [of] his person here, would be to attempt to compel him to perform an impossibility, that is, to pay a debt after he has been deprived of every means of payment,—an attempt which would, at least, amount to perpetual imprisonment, unless the benevolence of his friends should interfere to discharge [his] account.” Ibid. These two cases illustrate the backdrop against which the Bankruptcy Clause was adopted. In both James and Millar, the debtors argued that the earlier discharge should be given preclusive effect pursuant to the Full Faith and Credit Clause of the Articles of Confederation. See James, 1 Dall., at 190; Millar, 1 Dall., at 231. That possibility was the subject of discussion at the Constitutional Convention when a proposal to encompass legislative Acts, and insolvency laws in particular, within the coverage of the Full Faith and Credit Clause of the Constitution was committed to the Committee of Detail[Footnote 8] together with a proposal “ ‘[t]o establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange.’ ” See Nadelmann, On the Origin of the Bankruptcy Clause, 1 Am. J. Legal Hist. 215, 216–217, 219 (1957); see also Plank, The Constitutional Limits of Bankruptcy, 63 Tenn. L. Rev. 487, 527–528 (1996). A few days after this proposal was taken under advisement, the Committee of Detail reported that it had recommended adding the power “ ‘[t]o establish uniform laws upon the subject of bankruptcies’ ” to the Naturalization Clause of what later became Article I. The Convention adopted the Committee’s recommendation with very little debate two days later. Roger Sherman of Connecticut alone voted against it, apparently because he was concerned that it would authorize Congress to impose upon American citizens the ultimate penalty for debt then in effect in England: death. See J. Madison, Notes of Debates in the Federal Convention of 1787, p. 571 (Ohio Univ. Press ed. 1966). The absence of extensive debate over the text of the Bankruptcy Clause or its insertion indicates that there was general agreement on the importance of authorizing a uniform federal response to the problems presented in cases like James and Millar.[Footnote 9] III Bankruptcy jurisdiction, as understood today and at the time of the framing, is principally in rem jurisdiction. See Hood, 541 U. S., at 447; Local Loan Co., 292 U. S., at 241; Straton v. New, 283 U. S. 318, 320–321 (1931); Hanover Nat. Bank v. Moyses, 186 U. S. 181, 192 (1902); New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U. S. 656, 661–662 (1876). In bankruptcy, “the court’s jurisdiction is premised on the debtor and his estate, and not on the creditors.” Hood, 541 U. S., at 447. As such, its exercise does not, in the usual case, interfere with state sovereignty even when States’ interests are affected. See id., at 448. The text of Article I, §8, cl. 4, of the Constitution, however, provides that Congress shall have the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” Although the interest in avoiding unjust imprisonment for debt and making federal discharges in bankruptcy enforceable in every State was a primary motivation for the adoption of that provision, its coverage encompasses the entire “subject of Bankruptcies.” The power granted to Congress by that Clause is a unitary concept rather than an amalgam of discrete segments. The Framers would have understood that laws “on the subject of Bankruptcies” included laws providing, in certain limited respects, for more than simple adjudications of rights in the res. The first bankruptcy statute, for example, gave bankruptcy commissioners appointed by the district court the power, inter alia, to imprison recalcitrant third parties in possession of the estate’s assets. See Bankruptcy Act of 1800, §14, 2 Stat. 25 (repealed 1803). More generally, courts adjudicating disputes concerning bankrupts’ estates historically have had the power to issue ancillary orders enforcing their in rem adjudications. See, e.g., 2 W. Blackstone, Commentaries on the Laws of England 486 (1766) (noting that the assignees of the bankrupt’s property—the 18th-century counterparts to today’s bankruptcy trustees—could “pursue any legal method of recovering [the debtor’s] property so vested in them,” and could pursue methods in equity with the consent of the creditors); Plank, 63 Tenn. L. Rev., at 523 (discussing State insolvency and bankruptcy laws in the 18th century empowering courts to recover preferential transfers); see also Ex parte Christy, 3 How. 292, 312, 314 (1844) (Story, J.) (describing bankruptcy jurisdiction under the 1841 Act in broad terms); Wright v. Union Central Life Ins. Co., 304 U. S. 502, 513–514 (1938) (defining “bankruptcy” as the “ ‘subject of the relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his and their relief’ ” (emphasis added)). Our decision in Hood illustrates the point. As the dissenters in that case pointed out, it was at least arguable that the particular procedure that the debtor pursued to establish dischargeability of her student loan could have been characterized as a suit against the State rather than a purely in rem proceeding. See 541 U. S., at 455–456 (Thomas, J., dissenting). But because the proceeding was merely ancillary to the Bankruptcy Court’s exercise of its in rem jurisdiction, we held that it did not implicate state sovereign immunity. The point is also illustrated by Congress’ early grant to federal courts of the power to issue in personam writs of habeas corpus directing States to release debtors from state prisons, discussed in Part IV, infra. See Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494–495 (1973) (“The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody”). The interplay between in rem adjudications and orders ancillary thereto is evident in the case before us. Respondent first seeks a determination under 11 U. S. C. §547 that the various transfers made by the debtor to petitioners qualify as voidable preferences. The §547 determination, standing alone, operates as a mere declaration of avoidance. That declaration may be all that the trustee wants; for example, if the State has a claim against the bankrupt estate, the avoidance determination operates to bar that claim until the preference is turned over. See §502(d). In some cases, though, the trustee, in order to marshal the entirety of the debtor’s estate, will need to recover the subject of the transfer pursuant to §550(a). A court order mandating turnover of the property, although ancillary to and in furtherance of the court’s in rem jurisdiction, might itself involve in personam process. As we explain in Part IV, infra, it is not necessary to decide whether actions to recover preferential transfers pursuant to §550(a) are themselves properly characterized as in rem.[Footnote 10] Whatever the appropriate appellation, those who crafted the Bankruptcy Clause would have understood it to give Congress the power to authorize courts to avoid preferential transfers and to recover the transferred property. Petitioners do not dispute that that authority has been a core aspect of the administration of bankrupt estates since at least the 18th century. See, e.g., Rust v. Cooper, 2 Cowp. 629, 633–634, 98 Eng. Rep. 1277, 1280 (K. B. 1777); Alderson v. Temple, 1 Black. W. 660, 661–663, 96 Eng. Rep. 384, 385 (K. B. 1768); see also McCoid, Bankruptcy, Preferences, and Efficiency: An Expression of Doubt, 67 Va. L. Rev. 249, 251–253 (1981) (discussing English precedents, dating back to Sir Edward Coke’s discussion in The Case of Bankrupts, 2 Co. Rep. 25a, 76 Eng. Rep. 441 (K. B. 1589), addressing bankruptcy commissioners’ power to avoid preferences); In re Dehon, Inc., 327 B. R. 38, 62–65 (Bkrtcy. Ct. Mass. 2005) (collecting historical materials). And it, like the authority to issue writs of habeas corpus releasing debtors from state prisons, see Part IV, infra, operates free and clear of the State’s claim of sovereign immunity. IV Insofar as orders ancillary to the bankruptcy courts’ in rem jurisdiction, like orders directing turnover of preferential transfers, implicate States’ sovereign immunity from suit, the States agreed in the plan of the Convention not to assert that immunity. So much is evidenced not only by the history of the Bankruptcy Clause, which shows that the Framers’ primary goal was to prevent competing sovereigns’ interference with the debtor’s discharge, see Part II, supra, but also by legislation considered and enacted in the immediate wake of the Constitution’s ratification. Congress considered proposed legislation establishing uniform federal bankruptcy laws in the first and each succeeding Congress until 1800, when the first Bankruptcy Act was passed. See C. Warren, Bankruptcy in United States History 10 (1935) (“[I]n the very first session of the 1st Congress, during which only the most necessary subjects of legislation were considered, bankruptcy was one of those subjects; and as early as June 1, 1789, a Committee of the House was named to prepare a bankruptcy bill”). The Bankruptcy Act of 1800 was in many respects a copy of the English bankruptcy statute then in force. It was, like the English law, chiefly a measure designed to benefit creditors. Like the English statute, its principal provisions permitted bankruptcy commissioners, on appointment by a federal district court, to arrest the debtor, see §4, 2 Stat. 22; to “cause the doors of the dwelling-house of [the] bankrupt to be broken,” §4, id., at 23–24; to seize and collect the debtor’s assets, §5, id., at 23; to examine the debtor and any individuals who might have possession of the debtor’s property, §§14, 18, 19, id., at 25–27; and to issue a “certificate of discharge” once the estate had been distributed, §36, id., at 31. The American legislation differed slightly from the English, however. That difference reflects both the uniqueness of a system involving multiple sovereigns and the concerns that lay at the core of the Bankruptcy Clause itself. The English statute gave a judge sitting on a court where the debtor had obtained his discharge the power to order a sheriff, “Bailiff or Officer, Gaoler or Keeper of any Prison” to release the “Bankrupt out of Custody” if he were arrested subsequent to the discharge. 5 Geo. 2, ch. 30, ¶13 (1732). The American version of this provision was worded differently; it specifically granted federal courts the authority to issue writs of habeas corpus effective to release debtors from state prisons. See §38, 2 Stat. 32; see also In re Comstock, 6 F. Cas. 237, 239 (No. 3,073) (Vt. 1842) (observing that Bankruptcy Act of 1800, then repealed, would have granted a federal court the power to issue a writ of habeas corpus to release a debtor from state prison if he had been arrested following his bankruptcy discharge). This grant of habeas power is remarkable not least because it would be another 67 years, after ratification of the Fourteenth Amendment, before the writ would be made generally available to state prisoners. See Ex parte Royall, 117 U. S. 241, 247 (1886).[Footnote 11] Moreover, the provision of the 1800 Act granting that power was considered and adopted during a period when state sovereign immunity could hardly have been more prominent among the Nation’s concerns. Chisholm v. Georgia, 2 Dall. 419, the case that had so “shock[ed]” the country in its lack of regard for state sovereign immunity, Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934), was decided in 1793. The ensuing five years that culminated in adoption of the Eleventh Amendment were rife with discussion of States’ sovereignty and their amenability to suit. Yet there appears to be no record of any objection to the bankruptcy legislation or its grant of habeas power to federal courts based on an infringement of sovereign immunity. See Haines 184–185. This history strongly supports the view that the Bankruptcy Clause of Article I, the source of Congress’ authority to effect this intrusion upon state sovereignty, simply did not contravene the norms this Court has understood the Eleventh Amendment to exemplify. Cf. Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991) (“[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms …”).[Footnote 12] Petitioners, ignoring this history, contend that nothing in the words of the Bankruptcy Clause evinces an intent on the part of the Framers to alter the “background principle” of state sovereign immunity. Seminole Tribe of Fla., 517 U. S., at 72. Specifically, they deny that the word “uniform” in the Clause implies anything about pre-existing immunities or Congress’ power to interfere with those immunities. See Brief for Petitioners 32–42. Whatever the merits of petitioners’ argument,[Footnote 13] it misses the point; text aside, the Framers, in adopting the Bankruptcy Clause, plainly intended to give Congress the power to redress the rampant injustice resulting from States’ refusal to respect one another’s discharge orders. As demonstrated by the First Congress’ immediate consideration and the Sixth Congress’ enactment of a provision granting federal courts the authority to release debtors from state prisons, the power to enact bankruptcy legislation was understood to carry with it the power to subordinate state sovereignty, albeit within a limited sphere. The ineluctable conclusion, then, is that States agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to “Laws on the subject of Bankruptcies.” See Blatchford, 501 U. S., at 779 (observing that a State is not “subject to suit in federal court unless it has consented to suit, either expressly or in the ‘plan of the convention’ ”); Alden v. Maine, 527 U. S., at 713 (same).[Footnote 14] The scope of this consent was limited; the jurisdiction exercised in bankruptcy proceedings was chiefly in rem—a narrow jurisdiction that does not implicate state sovereignty to nearly the same degree as other kinds of jurisdiction. But while the principal focus of the bankruptcy proceedings is and was always the res, some exercises of bankruptcy courts’ powers—issuance of writs of habeas corpus included—unquestionably involved more than mere adjudication of rights in a res. In ratifying the Bankruptcy Clause, the States acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts.[Footnote 15] V Neither our decision in Hood, which held that States could not assert sovereign immunity as a defense in adversary proceedings brought to adjudicate the dischargeability of student loans, nor the cases upon which it relied, see 541 U. S., at 448–449 (discussing New York v. Irving Trust Co., 288 U. S. 329 (1933); Gardner, 329 U. S. 565; and Van Huffel v. Harkelrode, 284 U. S. 225 (1931)), rested on any statement Congress had made on the subject of state sovereign immunity. Nor does our decision today. The relevant question is not whether Congress has “abrogated” States’ immunity in proceedings to recover preferential transfers. See 11 U. S. C. §106(a).[Footnote 16] The question, rather, is whether Congress’ determination that States should be amenable to such proceedings is within the scope of its power to enact “Laws on the subject of Bankruptcies.” We think it beyond peradventure that it is. Congress may, at its option, either treat States in the same way as other creditors insofar as concerns “Laws on the subject of Bankruptcies” or exempt them from operation of such laws. Its power to do so arises from the Bankruptcy Clause itself; the relevant “abrogation” is the one effected in the plan of the Convention, not by statute. The judgment of the Court of Appeals for the Sixth Circuit is affirmed. It is so ordered. Footnote 1 A preferential transfer is defined as “any transfer of an interest of the debtor in property— “(1) to or for the benefit of a creditor; “(2) for or on account of an antecedent debt owed by the debtor before such transfer was made; “(3) made while the debtor was insolvent; “(4) made— “(A) on or within 90 days before the date of the filing of the petition; or “(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and “(5) that enables such creditor to receive more than such creditor would receive if— “(A) the case were a case under chapter 7 of this title; “(B) the transfer had not been made; and “(C) such creditor received payment of such debt to the extent pro- vided by the provisions of this title.” 11 U. S. C. §547(b). Respondent also instituted adversary proceedings against some of the petitioners to collect accounts receivable. He has, however, filed a letter with this Court indicating his intent not to pursue those claims further. Footnote 2 Section 106(a), as amended in 1994, provides in part as follows: “Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit . . . with respect to the following: “(1) Sections 105, 106, 107, 108, 303, 346, 362, 363, 364, 365, 366, 502, 503, 505, 506, 510, 522, 523, 524, 525, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 722, 724, 726, 728, 744, 749, 764, 901, 922, 926, 928, 929, 944, 1107, 1141, 1142, 1143, 1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303, 1305, and 1327 of this title. “(2) The court may hear and determine any issue arising with respect to the application of such sections to governmental units. “(3) The court may issue against a governmental unit an order, process, or judgment under such sections of the Federal Rules of Bankruptcy Procedure, including an order or judgment awarding a money recovery, but not including an award of punitive damages. . . .” The term “governmental unit” is defined to include a “State,” a “municipality,” and a “department, agency, or instrumentality of … a State.” §101(27). The above-quoted version of §106(a) is the product of revisions made in the wake of some of our precedents. The Bankruptcy Reform Act of 1978, 92 Stat. 2549, contained a provision indicating only that “governmental unit[s],” defined to include States, were deemed to have “waived sovereign immunity” with respect to certain proceedings in bankruptcy and to be bound by a court’s determinations under certain provisions of the Act “notwithstanding any assertion of sovereign immunity.” Id., at 2555–2556. This Court’s decisions in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989), and United States v. Nordic Village, Inc., 503 U. S. 30 (1992), which held that Congress had failed to make sufficiently clear in the predecessor to §106(a) its intent either to “abrogate” state sovereign immunity or to waive the Federal Government’s immunity, see 492 U. S., at 101; 503 U. S., at 39, prompted Congress in 1994 to enact the text of §106(a) now in force. See generally Gibson, Congressional Response to Hoffman and Nordic Village: Amended Section 106 and Sovereign Immunity, 69 Am. Bankr. L. J. 311 (1995). Footnote 3 In Cannon v. University of Chicago, 441 U. S. 677, 699 (1979), we endorsed the presumption “that Congress was thoroughly familiar” with contemporary law when it enacted Title IX of the Civil Rights Act of 1964. It is equally proper to presume that the delegates to the Constitutional Convention were fully aware of the potential for injustice, discussed in Part II, infra, presented by the nonuniform state laws authorizing imprisonment as a remedy for the nonpayment of an insolvent’s debts. Footnote 4 Imprisonment for debt was not abolished in England until 1869, and then only subject to certain exceptions. See Debtors Act, 1869, 32 & 33 Vict., ch. 62, §4; see also Cohen, The History of Imprisonment for Debt and its Relation to the Development of Discharge in Bankruptcy, 3 J. Leg. Hist. 153, 164 (1982). Footnote 5 The legislation widely acknowledged to be the first English bankruptcy statute, 34 & 35 Hen. 8, ch. 4, §1 (1542), contained a provision explaining that the statute was needed to deal with the growing number of debtors who, after “craftily obtaining into their Hands great Substance of other Men’s Goods, do suddenly flee to Parts unknown.” Footnote 6 “At the time of the Revolution, only three of the thirteen colonies … had laws discharging insolvents of their debts. No two of these relief systems were alike in anything but spirit. In four of the other ten colonies, insolvency legislation was either never enacted or, if enacted, never went into effect, and in the remaining six colonies, full relief was available only for scattered, brief periods, usually on an ad hoc basis to named insolvents.” Coleman, Debtors and Creditors in America, at 14. Footnote 7 Ingersoll was admitted to the Philadelphia bar in 1773 and elected a member of the Continental Congress in 1780. After serving as a delegate to the Constitutional Convention, he became a member of the Philadelphia Common Council. He served as attorney general of Pennsylvania from 1790 to 1799 and again from 1811 to 1817. From March 1821 until his death in 1822 he served as a judge in the District Court for the City and County of Philadelphia. Among the cases he litigated before this Court was Chisholm v. Georgia, 2 Dall. 419 (1793)—for the State of Georgia, see ibid. See also 9 Dictionary of American Biography 468–469 (1932). Footnote 8 The Committee of Detail was created by the Convention on July 25, 1787, to prepare a draft text of the Constitution based on delegates’ proposals. Footnote 9 Of course, the Bankruptcy Clause, located as it is in Article I, is “ ‘intimately connected’ ” not just with the Full Faith and Credit Clause, which appears in Article IV of the Constitution, but also with the Commerce Clause. See Railway Labor Executives’ Assn. v. Gibbons, 455 U. S. 457, 466 (1982) (quoting The Federalist No. 42, p. 285 (N. Y. Heritage Press 1945)). That does not mean, however, that the state sovereign immunity implications of the Bankruptcy Clause necessarily mirror those of the Commerce Clause. Indeed, the Bankruptcy Clause’s unique history, combined with the singular nature of bankruptcy courts’ jurisdiction, discussed infra, have persuaded us that the ratification of the Bankruptcy Clause does represent a surrender by the States of their sovereign immunity in certain federal proceedings. That conclusion is implicit in our holding in Tennessee Student Assistance Corporation v. Hood, 541 U. S. 440 (2004). Footnote 10 The proper characterization of such actions is not as clear as petitioners suggest. The Court in Nordic Village, Inc., 503 U. S., at 38, stated, as an alternative basis for rejecting a bankruptcy trustee’s argument that a suit to avoid a preferential transfer made to the Internal Revenue Service was an action in rem, that any in rem “exception” to sovereign immunity was unavailable in that case because the trustee sought to recover a “sum of money, not ‘particular dollars.’ ” There was, in the Court’s view, “no res to which the [bankruptcy] court’s in rem jurisdiction could have attached.” Ibid. In making that determination, the Court distinguished our earlier decision in United States v. Whiting Pools, Inc., 462 U. S. 198 (1983), which held that the debtor’s “estate,” the res, “includes property of the debtor that has been seized by a creditor prior to the filing of a [bankruptcy] petition.” Id., at 209; see also Begier v. IRS, 496 U. S. 53, 58 (1990) (“ ‘property of the debtor’ subject to the preferential transfer provision is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings”). We observe that the trustee in this case, unlike the one in Nordic Village, seeks, in the alternative, both return of the “value” of the preference, see 11 U. S. C. §550(a), and return of the actual “property transferred,” ibid. See Brief for Respondent 37 (“Respondent invokes the in rem jurisdiction of the bankruptcy court to recover under section 550 ‘the property transferred’ ”). Footnote 11 The Judiciary Act of 1789 authorized issuance of the writ, but only to release those held in federal custody. See Haines, The Uniformity Power: Why Bankruptcy is Different, 77 Am. Bankr. L. J. 129, 179–181 (2003) (hereinafter Haines). Also, in the interim between 1800 and 1867, Congress authorized limited issuance of the writ in response to two crises it viewed as sufficiently pressing to warrant a federal response: The South Carolina nullification controversy of 1828–1833 and the imprisonment of a foreign national by New York State a few years later. See 4 Stat. 632 (1833); 5 Stat. 539 (1842); see also W. Duker, A Constitutional History of Habeas Corpus 187–189 (1980). The 1833 statute made the writ available to U. S. citizens imprisoned by States for actions authorized by federal law, while the 1842 statute gave federal judges the power to release foreign nationals imprisoned for actions authorized by foreign governments. Footnote 12 Further evidence of the Framers’ intent to exempt laws “on the subject of Bankruptcies” from the operation of state sovereign immunity principles can be gleaned from §62 of the Bankruptcy Act of 1800. That section provided that “nothing contained in this law shall, in any manner, affect the right of preference to prior satisfaction of debts due to the United States as secured or provided by any law heretofore passed, nor shall be construed to lessen or impair any right to, or security for, money due to the United States or to any of them.” 2 Stat. 36. That Congress felt the need to carve out an exception for States’ preferences undermines any suggestion that it was operating against a background presumption of state sovereign immunity to bankruptcy laws. Indeed, one contemporary commentator read this section of the Act as requiring that the protected “priorit[ies]” would have to be “specifically given by some act of the Legislature of the Union” before they would be exempt from operation of the Act’s provisions. See T. Cooper, The Bankrupt Law of America, Compared with the Bankrupt Law of England 334 (1801) (reprint 1992) (“But I do not apprehend [that] this extends to give any priority to the United States, not specifically given by some act of the Legislature of the Union; nor will the English doctrine of priorities in favour of the crown be extended by analogy into this country”). Footnote 13 Petitioners make much of precedents suggesting that the word “uniform” represents a limitation, rather than an expansion, of Congress’ legislative power in the bankruptcy sphere. See, e.g., Gibbons, 455 U. S., at 468 (“Unlike the Commerce Clause, the Bankruptcy Clause itself contains an affirmative limitation or restriction upon Congress’ power: bankruptcy laws must be uniform throughout the United States”). They also cite Justice Frankfurter’s concurring opinion in Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156 (1946), for the proposition that “[t]he Constitutional requirement of uniformity is a requirement of geographic uniformity,” id., at 172. Based on these authorities, petitioners argue that the word “uniform” in the Bankruptcy Clause cannot be interpreted to confer upon Congress any greater authority to impinge upon state sovereign immunity than is conferred, for example, by the Commerce Clause. See Brief for Petitioners 33. Petitioners’ logic is not persuasive. Although our analysis does not rest on the peculiar text of the Bankruptcy Clause as compared to other Clauses of Article I, we observe that, if anything, the mandate to enact “uniform” laws supports the historical evidence showing that the States agreed not to assert their sovereign immunity in proceedings brought pursuant to “Laws on the subject of Bankruptcies.” That Congress is constrained to enact laws that are uniform in application, whether geographically or otherwise, cf. Gibbons, 455 U. S., at 470 (invalidating a bankruptcy law aimed at “one regional bankrupt railroad” and no one else), does not imply that it lacks power to enact bankruptcy legislation that is uniform in a more robust sense. See Haines 158–172. As our holding today demonstrates, Congress has the power to enact bankruptcy laws the purpose and effect of which are to ensure uniformity in treatment of state and private creditors. See Sturges v. Crowninshield, 4 Wheat. 122, 193–194 (1819) (Marshall, C. J.) (“The peculiar terms of the grant certainly deserve notice. Congress is not authorized merely to pass laws, the operation of which shall be uniform, but to establish uniform laws on the subject throughout the United States”); see also In re Dehon, Inc., 327 B. R. 38, 57–58 (Bkrtcy. Ct. Mass. 2005) (discussing Lathrop v. Drake, 91 U. S. 516 (1876)); The Federalist Nos. 32 and 81, pp. 197–201, 481–491 (C. Rossiter ed. 1961) (A. Hamilton) (pointing to the “uniform[ity]” language of the Naturalization Clause, which appears in the same clause of Article I as the bankruptcy provision, as an example of an instance where the Framers contemplated a “surrender of [States’] immunity in the plan of the convention”). Footnote 14 One might object that the writ of habeas corpus was no infringement on state sovereignty, and would not have been understood as such, because that writ, being in the nature of an injunction against a state official, does not commence or constitute a suit against the State. See Ex parte Young, 209 U. S. 123, 159–160 (1908). While that objection would be supported by precedent today, it would not have been apparent to the Framers. The Ex parte Young doctrine was not finally settled until over a century after the Framing and the enactment of the first bankruptcy statute. Indeed, we have recently characterized the doctrine as an expedient “fiction” necessary to ensure the supremacy of federal law. See Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 114, n. 25 (1984); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 281 (1997). Footnote 15 We do not mean to suggest that every law labeled a “bankruptcy” law could, consistent with the Bankruptcy Clause, properly impinge upon state sovereign immunity. Footnote 16 Cf. Hoffman, 492 U. S., at 101 (holding that, in an earlier version of 11 U. S. C. §106, Congress had failed to make sufficiently clear its intent to abrogate state sovereign immunity).
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548.US.735
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Petitioner Clark was charged with first-degree murder under an Arizona statute prohibiting “[i]nten[tionally] or knowing[ly]” killing a police officer in the line of duty. At his bench trial, Clark did not contest that he shot the officer or that the officer died, but relied on his own undisputed paranoid schizophrenia at the time of the incident to deny that he had the specific intent to shoot an officer or knowledge that he was doing so. Accordingly, the prosecutor offered circumstantial evidence that Clark knew the victim was a police officer and testimony indicating that Clark had previously stated he wanted to shoot police and had lured the victim to the scene to kill him. In presenting the defense case, Clark claimed mental illness, which he sought to introduce for two purposes. First, he raised the affirmative defense of insanity, putting the burden on himself to prove by clear and convincing evidence that, in the words of another state statute, “at the time of the [crime, he] was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong.” Second, he aimed to rebut the prosecution’s evidence of the requisite mens rea, that he had acted intentionally or knowingly to kill an officer. Ruling that Clark could not rely on evidence bearing on insanity to dispute the mens rea, the trial court cited the Arizona Supreme Court’s decision in State v. Mott, 187 Ariz. 536, 931 P. 2d 1046, which refused to allow psychiatric testimony to negate specific intent and held that Arizona does not allow evidence of a mental disorder short of insanity to negate the mens rea element of a crime. As to his insanity, then, Clark presented lay testimony describing his increasingly bizarre behavior over the year before the shooting. Other lay and expert testimony indicated, among other things, that Clark thought that “aliens” (some impersonating government agents) were trying to kill him and that bullets were the only way to stop them. A psychiatrist testified that Clark was suffering from paranoid schizophrenia with delusions about “aliens” when he killed the officer, and concluded that Clark was incapable of luring the officer or understanding right from wrong and was thus insane at the time of the killing. In rebuttal, the State’s psychiatrist gave his opinion that Clark’s paranoid schizophrenia did not keep him from appreciating the wrongfulness of his conduct before and after the shooting. The judge then issued a first-degree murder verdict, finding that in light of that the facts of the crime, the expert evaluations, Clark’s actions and behavior both before and after the shooting, and the observations of those who knew him, Clark had not established that his schizophrenia distorted his perception of reality so severely that he did not know his actions were wrong. Clark moved to vacate the judgment and life sentence, arguing, among other things, that Arizona’s insanity test and its Mott rule each violate due process. He claimed that the Arizona Legislature had impermissibly narrowed its insanity standard in 1993 when it eliminated the first of the two parts of the traditional M’Naghten insanity test. The trial court denied the motion. Affirming, the Arizona Court of Appeals held, among other things, that the State’s insanity scheme was consistent with due process. The court read Mott as barring the trial court’s consideration of evidence of Clark’s mental illness and capacity directly on the element of mens rea. Held: 1. Due process does not prohibit Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong. Pp. 6–15. (a) The first part of the landmark English rule in M’Naghten’s Case asks about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he was doing. The second part presents an ostensibly alternative basis for recognizing a defense of insanity understood as a lack of moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action was wrong. Although the Arizona Legislature at first adopted the full M’Naghten statement, it later dropped the cognitive incapacity part. Under current Arizona law, a defendant will not be adjudged insane unless he demonstrates that at the time of the crime, he was afflicted with a mental disease or defect of such severity that he did not know the criminal act was wrong. Pp. 6–7. (b) Clark insists that the side-by-side M’Naghten test represents the minimum that a government must provide, and he argues that eliminating the first part “ ‘offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Patterson v. New York, 432 U. S. 197, 202. The claim entails no light burden, and Clark does not carry it. History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle, so as to limit the traditional recognition of a State’s capacity to define crimes and defenses. See, e.g., Patterson, supra, at 210. Even a cursory examination of the traditional Anglo-American approaches to insanity reveals significant differences among them, with four traditional strains variously combined to yield a diversity of American standards. Although 17 States and the Federal Government have adopted recognizable versions of the M’Naghten test with both its components, other States have adopted a variety of standards based on all or part of one or more of four variants. The alternatives are multiplied further by variations in the prescribed insanity verdict. This varied background makes clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice. Pp. 7–12. (c) Nor does Arizona’s abbreviation of the M’Naghten statement raise a proper claim that some constitutional minimum has been shortchanged. Although Arizona’s former statement of the full M’Naghten rule was constitutionally adequate, the abbreviated rule is no less so, for cognitive incapacity is relevant under that statement, just as it was under the more extended formulation, and evidence going to cognitive incapacity has the same significance under the short form as it had under the long. Though Clark is correct that applying the moral incapacity test (telling right from wrong) does not necessarily require evaluation of a defendant’s cognitive capacity to appreciate the nature and quality of the acts charged against him, his argument fails to recognize that cognitive incapacity is itself enough to demonstrate moral incapacity, so that evidence bearing on whether the defendant knew the nature and quality of his actions is both relevant and admissible. In practical terms, if a defendant did not know what he was doing when he acted, he could not have known that he was performing the wrongful act charged as a crime. The Arizona appeals court acknowledged as much in this case. Clark adopted this very analysis in the trial court, which apparently agreed when it admitted his cognitive incapacity evidence for consideration under the State’s moral incapacity formulation. Clark can point to no evidence bearing on insanity that was excluded. Pp. 12–15. 2. The Arizona Supreme Court’s Mott rule does not violate due process. Pp. 15–38. (a) Mott held that testimony of a professional psychologist or psychiatrist about a defendant’s mental incapacity owing to mental disease or defect was admissible, and could be considered, only for its bearing on an insanity defense, but could not be considered on the element of mens rea. Of the three categories of evidence that potentially bear on mens rea—(1) everyday “observation evidence” either by lay or expert witnesses of what Clark did or said, which may support the professional diagnoses of disease and in any event is the kind of evidence that can be relevant to show what was on Clark’s mind when he fired his gun; (2) “mental-disease evidence,” typically from professional psychologists or psychiatrists based on factual reports, professional observations, and tests about Clark’s mental disease, with features described by the witness; and (3) “capacity evidence,” typically by the same experts, about Clark’s capacity for cognition and moral judgment (and ultimately also his capacity to form mens rea)—Mott imposed no restriction on considering evidence of the first sort, but applies to the latter two. Although the trial court seems to have applied the Mott restriction to all three categories of evidence Clark offered for the purpose of showing what he called his inability to form the required mens rea, his objection to Mott’s application does not turn on the distinction between lay and expert witnesses or the kinds of testimony they were competent to present. Rather, the issue here is Clark’s claim that the Mott rule violates due process. Pp. 15–25. (b) Clark’s Mott challenge turns on the application of the presumption of innocence in criminal cases, the presumption of sanity, and the principle that a criminal defendant is entitled to present relevant and favorable evidence on an element of the offense charged against him. Pp. 25–30. (i) The presumption of innocence is that a defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense changed, including the mental element or mens rea. The modern tendency is to describe the mens rea required to prove particular offenses in specific terms, as shown in the Arizona statute requiring the State to prove that in acting to kill the victim, Clark intended to kill a law enforcement officer on duty or knew that the victim was such an officer on duty. As applied to mens rea (and every other element), the force of the presumption of innocence is measured by the force of the showing needed to overcome it, which is proof beyond a reasonable doubt that a defendant’s state of mind was in fact what the charge states. See In re Winship, 397 U. S. 358, 361–363. Pp. 25–26. (ii) The presumption of sanity dispenses with a requirement that the government include as an element of every criminal charge an allegation that the defendant had the capacity to form the mens rea necessary for conviction and criminal responsibility. Unlike the presumption of innocence, the presumption of sanity’s force varies across the many state and federal jurisdictions, and prior law has recognized considerable leeway on the part of the legislative branch in defining the presumption’s strength through the kind of evidence and degree of persuasiveness necessary to overcome it, see Fisher v. United States, 328 U. S. 463, 466–476. There are two points where the sanity or capacity presumption may be placed in issue. First, a State may allow a defendant to introduce (and a factfinder to consider) evidence of mental disease or incapacity for the bearing it can have on the government’s burden to show mens rea. Second, the sanity presumption’s force may be tested in the consideration of an insanity defense raised by a defendant. Insanity rules like M’Naghten and the variants noted above are attempts to define or indicate the kinds of mental differences that overcome the presumption of sanity or capacity and therefore excuse a defendant from customary criminal responsibility, see, e.g., Jones v. United States, 463 U. S. 354, 373, n. 4, even if the prosecution has otherwise overcome the presumption of innocence by convincing the factfinder of all the elements charged beyond a reasonable doubt. The burden a defendant raising the insanity issue must carry defines the strength of the sanity presumption. A State may, for example, place the burden of persuasion on a defendant to prove insanity as the applicable law defines it, whether by a preponderance of the evidence or to some more convincing degree. See, e.g., Leland v. Oregon, 343 U. S. 790, 798. Pp. 26–29. (iii) A defendant has a due process right to present evidence favorable to himself on an element that must be proven to convict him. Evidence tending to show that a defendant suffers from mental disease and lacks capacity to form mens rea is relevant to rebut evidence that he did in fact form the required mens rea at the time in question. Thus, Clark claims a right to require the factfinder in this case to consider testimony about his mental illness and his incapacity directly, when weighing the persuasiveness of other evidence tending to show mens rea, which the prosecution has the burden to prove. However, the right to introduce relevant evidence can be curtailed if there is a good reason for doing so. For example, trial judges may “exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U. S. ___, ___. And if evidence may be kept out entirely, its consideration may be subject to limitation, which Arizona claims the power to impose here. Under state law, mental-disease and capacity evidence may be considered only for its bearing on the insanity defense, and it will avail a defendant only if it is persuasive enough to satisfy the defendant’s burden as defined by the terms of that defense. Such evidence is thus being channeled or restricted to one issue; it is not being excluded entirely, and the question is whether reasons for requiring it to be channeled and restricted satisfy due process’s fundamental fairness standard. Pp. 29–30. (c) The reasons supporting the Arizona rule satisfy due process. Pp. 30–38. (i) The first such reason is Arizona’s authority to define its presumption of sanity (or capacity or responsibility) by choosing an insanity definition and placing the burden of persuasion on criminal defendants claiming incapacity as an excuse. Consistent with due process, a State can require defendants to bear that burden, see Leland, supra, at 797–799, and Clark does not object to Arizona’s decision to require persuasion to a clear and convincing degree before the presumption of sanity and normal responsibility is overcome. If a State is to have this authority in practice as well as in theory, it must be able to deny a defendant the opportunity to displace the sanity presumption more easily when addressing a different issue during the criminal trial. Yet just such an opportunity would be available if expert testimony of mental disease and incapacity could be considered for whatever a factfinder might think it was worth on the mens rea issue. The sanity presumption would then be only as strong as the evidence a factfinder would accept as enough to raise a reasonable doubt about mens rea; once reasonable doubt was found, acquittal would be required, and the standards established for the insanity defense would go by the boards. What counts for due process is simply that a State wishing to avoid a second avenue for exploring capacity, less stringent for a defendant, has a good reason for confining the consideration of mental disease and incapacity evidence to the insanity defense. Pp. 30–32. (ii) Arizona’s rule also serves to avoid confusion and misunderstanding on the part of jurors. The controversial character of some categories of mental disease, the potential of mental-disease evidence to mislead, and the danger of according greater certainty to capacity evidence than experts claim for it give rise to risks that may reasonably be hedged by channeling the consideration of such evidence to the insanity issue on which, in States like Arizona, a defendant has the burden of persuasion. First, the diagnosis may mask vigorous debate within the psychiatric profession about the very contours of the mental disease itself. See, e.g., Jones, supra, at 364–365, n. 13. Though mental-disease evidence is certainly not condemned wholesale, the consequence of this professional ferment is a general caution in treating psychological classifications as predicates for excusing otherwise criminal conduct. Next, there is the potential of mental-disease evidence to mislead jurors (when they are the factfinders) through the power of this kind of evidence to suggest that a defendant suffering from a recognized mental disease lacks cognitive, moral, volitional, or other capacity, when that may not be a sound conclusion at all. Even when a category of mental disease is broadly accepted and the assignment of a defendant’s behavior to that category is uncontroversial, the classification may suggest something very significant about a defendant’s capacity, when in fact the classification tells little or nothing about the defendant’s ability to form mens rea or to exercise the cognitive, moral, or volitional capacities that define legal sanity. The limits of the utility of a professional disease diagnosis are evident in the dispute between the two testifying experts in this case; they agree that Clark was schizophrenic, but they reach opposite conclusions on whether his mental disease left him bereft of cognitive or moral capacity. Finally, there are particular risks inherent in the opinions of the experts who supplement the mental-disease classifications with opinions on incapacity: on whether the mental disease rendered a particular defendant incapable of the cognition necessary for moral judgment or mens rea or otherwise incapable of understanding the wrongfulness of the conduct charged. Unlike observational evidence bearing on mens rea, capacity evidence consists of judgment, and judgment is fraught with multiple perils. Although such capacity judgments may be given in the utmost good faith, their potentially tenuous character is indicated by the candor of the defense expert in this very case. He testified that Clark lacked the capacity to appreciate the circumstances realistically and to understand the wrongfulness of what he was doing, but he admitted that no one knew exactly what was on Clark’s mind at the time of the shooting. Even when an expert is confident that his understanding of the mind is reliable, judgment addressing the basic categories of capacity requires a leap from the concepts of psychology, which are devised for thinking about treatment, to the concepts of legal sanity, which are devised for thinking about criminal responsibility. Pp. 33–38. (d) For these reasons, there is also no cause to claim that channeling evidence on metal disease and capacity offends any “ ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Patterson, supra, at 202. P. 38. Affirmed. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined, and in which Breyer, J., joined except as to Parts III–B and III–C and the ultimate disposition. Breyer, J., filed an opinion concurring in part and dissenting in part. Kennedy, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined.
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The case presents two questions: whether due process prohibits Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong; and whether Arizona violates due process in restricting consideration of defense evidence of mental illness and incapacity to its bearing on a claim of insanity, thus eliminating its significance directly on the issue of the mental element of the crime charged (known in legal shorthand as the mens rea, or guilty mind). We hold that there is no violation of due process in either instance. I In the early hours of June 21, 2000, Officer Jeffrey Moritz of the Flagstaff Police responded in uniform to complaints that a pickup truck with loud music blaring was circling a residential block. When he located the truck, the officer turned on the emergency lights and siren of his marked patrol car, which prompted petitioner Eric Clark, the truck’s driver (then 17), to pull over. Officer Moritz got out of the patrol car and told Clark to stay where he was. Less than a minute later, Clark shot the officer, who died soon after but not before calling the police dispatcher for help. Clark ran away on foot but was arrested later that day with gunpowder residue on his hands; the gun that killed the officer was found nearby, stuffed into a knit cap. Clark was charged with first-degree murder under Ariz. Rev. Stat. Ann. §13–1105(A)(3) (West Supp. 2005) for intentionally or knowingly killing a law enforcement officer in the line of duty.[Footnote 1] In March 2001, Clark was found incompetent to stand trial and was committed to a state hospital for treatment, but two years later the same trial court found his competence restored and ordered him to be tried. Clark waived his right to a jury, and the case was heard by the court. At trial, Clark did not contest the shooting and death, but relied on his undisputed paranoid schizophrenia at the time of the incident in denying that he had the specific intent to shoot a law enforcement officer or knowledge that he was doing so, as required by the statute. Accordingly, the prosecutor offered circumstantial evidence that Clark knew Officer Moritz was a law enforcement officer. The evidence showed that the officer was in uniform at the time, that he caught up with Clark in a marked police car with emergency lights and siren going, and that Clark acknowledged the symbols of police authority and stopped. The testimony for the prosecution indicated that Clark had intentionally lured an officer to the scene to kill him, having told some people a few weeks before the incident that he wanted to shoot police officers. At the close of the State’s evidence, the trial court denied Clark’s motion for judgment of acquittal for failure to prove intent to kill a law enforcement officer or knowledge that Officer Moritz was a law enforcement officer. In presenting the defense case, Clark claimed mental illness, which he sought to introduce for two purposes. First, he raised the affirmative defense of insanity, putting the burden on himself to prove by clear and convincing evidence, §13–502(C) (West 2001), that “at the time of the commission of the criminal act [he] was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong,” §13–502(A).[Footnote 2] Second, he aimed to rebut the prosecution’s evidence of the requisite mens rea, that he had acted intentionally or knowingly to kill a law enforcement officer. See, e.g., Record in No. CR 2000–538 (Ariz. Super. Ct.), Doc. 374 (hereinafter Record). The trial court ruled that Clark could not rely on evidence bearing on insanity to dispute the mens rea. The court cited State v. Mott, 187 Ariz. 536, 931 P. 2d 1046 (en banc), cert. denied, 520 U. S. 1234 (1997), which “refused to allow psychiatric testimony to negate specific intent,” 187 Ariz., at 541, 931 P. 2d, at 1051, and held that “Arizona does not allow evidence of a defendant’s mental disorder short of insanity … to negate the mens rea element of a crime,” ibid.[Footnote 3] As to his insanity, then, Clark presented testimony from classmates, school officials, and his family describing his increasingly bizarre behavior over the year before the shooting. Witnesses testified, for example, that paranoid delusions led Clark to rig a fishing line with beads and wind chimes at home to alert him to intrusion by invaders, and to keep a bird in his automobile to warn of airborne poison. There was lay and expert testimony that Clark thought Flagstaff was populated with “aliens” (some impersonating government agents), the “aliens” were trying to kill him, and bullets were the only way to stop them. A psychiatrist testified that Clark was suffering from paranoid schizophrenia with delusions about “aliens” when he killed Officer Moritz, and he concluded that Clark was incapable of luring the officer or understanding right from wrong and that he was thus insane at the time of the killing. In rebuttal, a psychiatrist for the State gave his opinion that Clark’s paranoid schizophrenia did not keep him from appreciating the wrongfulness of his conduct, as shown by his actions before and after the shooting (such as circling the residential block with music blaring as if to lure the police to intervene, evading the police after the shooting, and hiding the gun). At the close of the defense case consisting of this evidence bearing on mental illness, the trial court denied Clark’s renewed motion for a directed verdict grounded on failure of the prosecution to show that Clark knew the victim was a police officer.[Footnote 4] The judge then issued a special verdict of first-degree murder, expressly finding that Clark shot and caused the death of Officer Moritz beyond a reasonable doubt and that Clark had not shown that he was insane at the time. The judge noted that though Clark was indisputably afflicted with paranoid schizophrenia at the time of the shooting, the mental illness “did not … distort his perception of reality so severely that he did not know his actions were wrong.” App. 334. For this conclusion, the judge expressly relied on “the facts of the crime, the evaluations of the experts, [Clark’s] actions and behavior both before and after the shooting, and the observations of those that knew [Clark].” Id., at 333. The sentence was life imprisonment without the possibility of release for 25 years. Clark moved to vacate the judgment and sentence, arguing, among other things, that Arizona’s insanity test and its Mott rule each violate due process. As to the insanity standard, Clark claimed (as he had argued earlier) that the Arizona Legislature had impermissibly narrowed its standard in 1993 when it eliminated the first part of the two-part insanity test announced in M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843). The court denied the motion. The Court of Appeals of Arizona affirmed Clark’s conviction, treating the conclusion on sanity as supported by enough evidence to withstand review for abuse of discretion, and holding the State’s insanity scheme consistent with due process. App. 336. As to the latter, the Court of Appeals reasoned that there is no constitutional requirement to recognize an insanity defense at all, the bounds of which are left to the State’s discretion. Beyond that, the appellate court followed Mott, reading it as barring the trial court’s consideration of evidence of Clark’s mental illness and capacity directly on the element of mens rea. The Supreme Court of Arizona denied further review. We granted certiorari to decide whether due process prohibits Arizona from thus narrowing its insanity test or from excluding evidence of mental illness and incapacity due to mental illness to rebut evidence of the requisite criminal intent. 546 U. S. ___ (2005). We now affirm. II Clark first says that Arizona’s definition of insanity, being only a fragment of the Victorian standard from which it derives, violates due process. The landmark English rule in M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843), states that “the jurors ought to be told … that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722. The first part asks about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he is doing. The second part presents an ostensibly alternative basis for recognizing a defense of insanity understood as a lack of moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action is wrong. When the Arizona Legislature first codified an insanity rule, it adopted the full M’Naghten statement (subject to modifications in details that do not matter here): “A person is not responsible for criminal conduct if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong.” Ariz. Rev. Stat. Ann. §13–502 (West 1978).[Footnote 5] In 1993, the legislature dropped the cognitive incapacity part, leaving only moral incapacity as the nub of the stated definition. See 1993 Ariz. Sess. Laws ch. 256, §§2–3.[Footnote 6] Under current Arizona law, a defendant will not be adjudged insane unless he demonstrates that “at the time of the commission of the criminal act [he] was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong,” Ariz. Rev. Stat. Ann. §13–502(A) (West 2001). A Clark challenges the 1993 amendment excising the express reference to the cognitive incapacity element. He insists that the side-by-side M’Naghten test represents the minimum that a government must provide in recognizing an alternative to criminal responsibility on grounds of mental illness or defect, and he argues that elimination of the M’Naghten reference to nature and quality “ ‘offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Patterson v. New York, 432 U. S. 197, 202 (1977) (quoting Speiser v. Randall, 357 U. S. 513, 523 (1958)); see also Leland v. Oregon, 343 U. S. 790, 798 (1952). The claim entails no light burden, see Montana v. Egelhoff, 518 U. S. 37, 43 (1996) (plurality opinion), and Clark does not carry it. History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle, so as to limit the traditional recognition of a State’s capacity to define crimes and defenses, see Patterson, supra, at 210; see also Foucha v. Louisiana, 504 U. S. 71, 96 (1992) (Kennedy, J., dissenting). Even a cursory examination of the traditional Anglo-American approaches to insanity reveals significant differences among them, with four traditional strains variously combined to yield a diversity of American standards. The main variants are the cognitive incapacity, the moral incapacity, the volitional incapacity, and the product-of-mental-illness tests.[Footnote 7] The first two emanate from the alternatives stated in the M’Naghten rule. The volitional incapacity or irresistible-impulse test, which surfaced over two centuries ago (first in England,[Footnote 8] then in this country[Footnote 9]), asks whether a person was so lacking in volition due to a mental defect or illness that he could not have controlled his actions. And the product-of-mental-illness test was used as early as 1870,[Footnote 10] and simply asks whether a person’s action was a product of a mental disease or defect.[Footnote 11] Seventeen States and the Federal Government have adopted a recognizable version of the M’Naghten test with both its cognitive incapacity and moral incapacity components.[Footnote 12] One State has adopted only M’Naghten’s cognitive incapacity test,[Footnote 13] and 10 (including Arizona) have adopted the moral incapacity test alone.[Footnote 14] Fourteen jurisdictions, inspired by the Model Penal Code,[Footnote 15] have in place an amalgam of the volitional incapacity test and some variant of the moral incapacity test, satisfaction of either (generally by showing a defendant’s substantial lack of capacity) being enough to excuse.[Footnote 16] Three States combine a full M’Naghten test with a volitional incapacity formula.[Footnote 17] And New Hampshire alone stands by the product-of-mental-illness test.[Footnote 18] The alternatives are multiplied further by variations in the prescribed insanity verdict: a significant number of these jurisdictions supplement the traditional “not guilty by reason of insanity” verdict with an alternative of “guilty but mentally ill.”[Footnote 19] Finally, four States have no affirmative insanity defense,[Footnote 20] though one provides for a “guilty and mentally ill” verdict.[Footnote 21] These four, like a number of others that recognize an affirmative insanity defense, allow consideration of evidence of mental illness directly on the element of mens rea defining the offense.[Footnote 22] With this varied background, it is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice. Indeed, the legitimacy of such choice is the more obvious when one considers the interplay of legal concepts of mental illness or deficiency required for an insanity defense, with the medical concepts of mental abnormality that influence the expert opinion testimony by psychologists and psychiatrists commonly introduced to support or contest insanity claims. For medical definitions devised to justify treatment, like legal ones devised to excuse from conventional criminal responsibility, are subject to flux and disagreement. See infra, at 31–33; cf. Leland, 343 U. S., at 800–801 (no due process violation for adopting the M’Naghten standard rather than the irresistible-impulse test because scientific knowledge does not require otherwise and choice of test is a matter of policy). There being such fodder for reasonable debate about what the cognate legal and medical tests should be, due process imposes no single canonical formulation of legal insanity. B Nor does Arizona’s abbreviation of the M’Naghten statement raise a proper claim that some constitutional minimum has been shortchanged. Clark’s argument of course assumes that Arizona’s former statement of the M’Naghten rule, with its express alternative of cognitive incapacity, was constitutionally adequate (as we agree). That being so, the abbreviated rule is no less so, for cognitive incapacity is relevant under that statement, just as it was under the more extended formulation, and evidence going to cognitive incapacity has the same significance under the short form as it had under the long. Though Clark is correct that the application of the moral incapacity test (telling right from wrong) does not necessarily require evaluation of a defendant’s cognitive capacity to appreciate the nature and quality of the acts charged against him, see Brief for Petitioner 46–47, his argument fails to recognize that cognitive incapacity is itself enough to demonstrate moral incapacity. Cognitive incapacity, in other words, is a sufficient condition for establishing a defense of insanity, albeit not a necessary one. As a defendant can therefore make out moral incapacity by demonstrating cognitive incapacity, evidence bearing on whether the defendant knew the nature and quality of his actions is both relevant and admissible. In practical terms, if a defendant did not know what he was doing when he acted, he could not have known that he was performing the wrongful act charged as a crime.[Footnote 23] Indeed, when the two-part rule was still in effect, the Supreme Court of Arizona held that a jury instruction on insanity containing the moral incapacity part but not a full recitation of the cognitive incapacity part was fine, as the cognitive incapacity part might be “ ‘treated as adding nothing to the requirement that the accused know his act was wrong.’ ” State v. Chavez, 143 Ariz. 238, 239, 693 P. 2d 893, 894 (1984) (quoting A. Goldstein, The Insanity Defense 50 (1967)). The Court of Appeals of Arizona acknowledged as much in this case, too, see App. 350 (“It is difficult to imagine that a defendant who did not appreciate the ‘nature and quality’ of the act he committed would reasonably be able to perceive that the act was ‘wrong’ ”), and thus aligned itself with the long-accepted understanding that the cognitively incapacitated are a subset of the morally incapacitated within the meaning of the standard M’Naghten rule, see, e.g., Goldstein, supra, at 51 (“In those situations where the accused does not know the nature and quality of his act, in the broad sense, he will not know that it was wrong, no matter what construction ‘wrong’ is given”); 1 W. LaFave, Substantive Criminal Law §7.2(b)(3), p. 536 (2d ed. 2003) (“Many courts feel that knowledge of ‘the nature and quality of the act’ is the mere equivalent of the ability to know that the act was wrong” (citing cases)); id., §7.2(b)(4), at 537 (“If the defendant does not know the nature and quality of his act, then quite obviously he does not know that his act is ‘wrong,’ and this is true without regard to the interpretation given to the word ‘wrong’ ”); cf. 1 R. Gerber, Criminal Law of Arizona 502–7, n. 1 (2d ed. 1993).[Footnote 24] Clark, indeed, adopted this very analysis himself in the trial court: “[I]f [Clark] did not know he was shooting at a police officer, or believed he had to shoot or be shot, even though his belief was not based in reality, this would establish that he did not know what he was doing was wrong.” Record, Doc. 374, at 1. The trial court apparently agreed, for the judge admitted Clark’s evidence of cognitive incapacity for consideration under the State’s moral incapacity formulation. And Clark can point to no evidence bearing on insanity that was excluded. His psychiatric expert and a number of lay witnesses testified to his delusions, and this evidence tended to support a description of Clark as lacking the capacity to understand that the police officer was a human being. There is no doubt that the trial judge considered the evidence as going to an issue of cognitive capacity, for in finding insanity not proven he said that Clark’s mental illness “did not … distort his perception of reality so severely that he did not know his actions were wrong,” App. 334. We are satisfied that neither in theory nor in practice did Arizona’s 1993 abridgment of the insanity formulation deprive Clark of due process. III Clark’s second claim of a due process violation challenges the rule adopted by the Supreme Court of Arizona in State v. Mott, 187 Ariz. 536, 931 P. 2d 1046 (en banc), cert. denied, 520 U. S. 1234 (1997). This case ruled on the admissibility of testimony from a psychologist offered to show that the defendant suffered from battered women’s syndrome and therefore lacked the capacity to form the mens rea of the crime charged against her. The opinion variously referred to the testimony in issue as “psychological testimony,” 187 Ariz., at 541, 931 P. 2d, at 1051, and “expert testimony,” ibid., and implicitly equated it with “expert psychiatric evidence,” id., at 540, 931 P. 2d, at 1050 (internal quotation marks omitted), and “psychiatric testimony,” id., at 541, 931 P. 2d, at 1051.[Footnote 25] The state court held that testimony of a professional psychologist or psychiatrist about a defendant’s mental incapacity owing to mental disease or defect was admissible, and could be considered, only for its bearing on an insanity defense; such evidence could not be considered on the element of mens rea, that is, what the State must show about a defendant’s mental state (such as intent or understanding) when he performed the act charged against him. See id., at 541, 544, 931 P. 2d, at 1051, 1054.[Footnote 26] A Understanding Clark’s claim requires attention to the categories of evidence with a potential bearing on mens rea. First, there is “observation evidence” in the everyday sense, testimony from those who observed what Clark did and heard what he said; this category would also include testimony that an expert witness might give about Clark’s tendency to think in a certain way and his behavioral characteristics. This evidence may support a professional diagnosis of mental disease and in any event is the kind of evidence that can be relevant to show what in fact was on Clark’s mind when he fired the gun. Observation evidence in the record covers Clark’s behavior at home and with friends, his expressions of belief around the time of the killing that “aliens” were inhabiting the bodies of local people (including government agents),[Footnote 27] his driving around the neighborhood before the police arrived, and so on. Contrary to the dissent’s characterization, see post, at 2 (opinion of Kennedy, J.), observation evidence can be presented by either lay or expert witnesses. Second, there is “mental-disease evidence” in the form of opinion testimony that Clark suffered from a mental disease with features described by the witness. As was true here, this evidence characteristically but not always[Footnote 28] comes from professional psychologists or psychiatrists who testify as expert witnesses and base their opinions in part on examination of a defendant, usually conducted after the events in question. The thrust of this evidence was that, based on factual reports, professional observations, and tests, Clark was psychotic at the time in question, with a condition that fell within the category of schizophrenia. Third, there is evidence we will refer to as “capacity evidence” about a defendant’s capacity for cognition and moral judgment (and ultimately also his capacity to form mens rea). This, too, is opinion evidence. Here, as it usually does,[Footnote 29] this testimony came from the same experts and concentrated on those specific details of the mental condition that make the difference between sanity and insanity under the Arizona definition.[Footnote 30] In their respective testimony on these details the experts disagreed: the defense expert gave his opinion that the symptoms or effects of the disease in Clark’s case included inability to appreciate the nature of his action and to tell that it was wrong, whereas the State’s psychiatrist was of the view that Clark was a schizophrenic who was still sufficiently able to appreciate the reality of shooting the officer and to know that it was wrong to do that.[Footnote 31] A caveat about these categories is in order. They attempt to identify different kinds of testimony offered in this case in terms of explicit and implicit distinctions made in Mott. What we can say about these categories goes to their cores, however, not their margins. Exact limits have thus not been worked out in any Arizona law that has come to our attention, and in this case, neither the courts in their rulings nor counsel in objections invoked or required precision in applying the Mott rule’s evidentiary treatment, as we explain below. Necessarily, then, our own decision can address only core issues, leaving for other cases any due process claims that may be raised about the treatment of evidence whose categorization is subject to dispute. B It is clear that Mott itself imposed no restriction on considering evidence of the first sort, the observation evidence. We read the Mott restriction to apply, rather, to evidence addressing the two issues in testimony that characteristically comes only from psychologists or psychiatrists qualified to give opinions as expert witnesses: mental-disease evidence (whether at the time of the crime a defendant suffered from a mental disease or defect, such as schizophrenia) and capacity evidence (whether the disease or defect left him incapable of performing or experiencing a mental process defined as necessary for sanity such as appreciating the nature and quality of his act and knowing that it was wrong). Mott was careful to distinguish this kind of opinion evidence from observation evidence generally and even from observation evidence that an expert witness might offer, such as descriptions of a defendant’s tendency to think in a certain way or his behavioral characteristics; the Arizona court made it clear that this sort of testimony was perfectly admissible to rebut the prosecution’s evidence of mens rea, 187 Ariz., at 544, 931 P. 2d, at 1054. Thus, only opinion testimony going to mental defect or disease, and its effect on the cognitive or moral capaci- ties on which sanity depends under the Arizona rule, is restricted. In this case, the trial court seems to have applied the Mott restriction to all evidence offered by Clark for the purpose of showing what he called his inability to form the required mens rea, see, e.g., Record, Doc. 406, pp. 7–10, (that is, an intent to kill a police officer on duty, or an understanding that he was engaging in the act of killing such an officer, see Ariz. Rev. Stat. Ann. §13–1105(A)(3) (West Supp. 2005)). Thus, the trial court’s restriction may have covered not only mental-disease and capacity evidence as just defined, but also observation evidence offered by lay (and expert) witnesses who described Clark’s unusual behavior. Clark’s objection to the application of the Mott rule does not, however, turn on the distinction between lay and expert witnesses or the kinds of testimony they were competent to present.[Footnote 32] C There is some, albeit limited, disagreement between the dissent and ourselves about the scope of the claim of error properly before us. To start with matters of agreement, all Members of the Court agree that Clark’s general attack on the Mott rule covers its application in confining consideration of capacity evidence to the insanity defense. In practical terms, our agreement on issues presented extends to a second point. Justice Kennedy understands that Clark raised an objection to confining mental-disease evidence to the insanity issue. As he sees it, Clark in effect claimed that in dealing with the issue of mens rea the trial judge should have considered expert testimony on what may characteristically go through the mind of a schizophrenic, when the judge considered what in fact was in Clark’s mind at the time of the shooting. See post, at 3 (dissenting opinion) (“[T]he opinion that Clark had paranoid schizophrenia—an opinion shared by experts for both the prosecution and defense—bears on efforts to determine, as a factual matter, whether he knew he was killing a police officer”). He thus understands that defense counsel claimed a right to rebut the State’s mens rea demonstration with testimony about how schizophrenics may hallucinate voices and other sounds, about their characteristic failure to distinguish the content of their imagination from what most people perceive as exterior reality, and so on. It is important to be clear that this supposed objection was not about dealing with testimony based on observation of Clark showing that he had auditory hallucinations when he was driving around, or failed in fact to appreciate objective reality when he shot; this objection went to use of testimony about schizophrenics, not about Clark in particular. While we might dispute how clearly Clark raised this objection, we have no doubt that the objection falls within a general challenge to the Mott rule; we understand that Mott is meant to confine to the insanity defense any consideration of characteristic behavior associated with mental disease, see 187 Ariz., at 544, 931 P. 2d, at 1054 (contrasting State v. Christensen, 129 Ariz. 32, 628 P. 2d 580 (1991), and State v. Gonzales, 140 Ariz. 349, 681 P. 2d 1368 (1984)). We will therefore assume for argument that Clark raised this claim, as we consider the due process challenge to the Mott rule. The point on which we disagree with the dissent, however, is this: did Clark apprise the Arizona courts that he believed the trial judge had erroneously limited the consideration of observation evidence, whether from lay witnesses like Clark’s mother or (possibly) the expert witnesses who observed him? This sort of evidence was not covered by the Mott restriction, and confining it to the insanity issue would have been an erroneous application of Mott as a matter of Arizona law. For the following reasons we think no such objection was made in a way the Arizona courts could have understood it, and that no such issue is before us now. We think the only issue properly before us is the challenge to Mott on due process grounds, comprising objections to limits on the use of mental-disease and capacity evidence. It is clear that the trial judge intended to apply Mott: “[R]ecognizing that much of the evidence that [the defense is] going to be submitting, in fact all of it, as far as I know … that has to do with the insanity could also arguably be made along the lines of the Mott issue as to form and intent and his capacity for the intent. I’m going to let you go ahead and get all that stuff in because it goes to the insanity issue and because we’re not in front of a jury. At the end, I’ll let you make an offer of proof as to the intent, the Mott issues, but I still think the supreme court decision is the law of the land in this state.” App. 9. At no point did the trial judge specify any particular evidence that he refused to consider on the mens rea issue. Nor did defense counsel specify any observation or other particular evidence that he claimed was admissible but wrongly excluded on the issue of mens rea, so as to produce a clearer ruling on what evidence was being restricted on the authority of Mott and what was not. He made no “offer of proof” in the trial court;[Footnote 33] and although his brief in the Arizona Court of Appeals stated at one point that it was not inconsistent with Mott to consider nonexpert evidence indicating mental illness on the issue of mens rea, and argued that the trial judge had failed to do so, Appellant’s Opening Brief in No. 1CA–CR–03–0851 etc. (Ariz. Ct. App.), pp. 48–49 (hereinafter Appellant’s Opening Brief), he was no more specific than that, see, e.g., id., at 52 (“The Court’s ruling in Mott and the trial court’s refusal to consider whether as a result of suffering from paranoid schizophrenia [Clark] could not formulate the mens rea necessary for first degree murder violated his right to due process”). Similarly, we read the Arizona Court of Appeals to have done nothing more than rely on Mott to reject the claim that due process forbids restricting evidence bearing on “[a]bility to [f]orm [m]ens [r]ea,” App. 351 (emphasis in original), (i.e., mental-disease and capacity evidence) to the insanity determination. See id., at 351–353. This failure in the state courts to raise any clear claim about observation evidence, see Appellant’s Opening Brief 46–52, is reflected in the material addressed to us, see Brief for Petitioner 13–32. In this Court both the question presented and the following statement of his position were couched in similarly worded general terms: “I. Eric was denied due process when the trial court refused to consider evidence of his severe mental illness in determining factually whether the prosecution proved the mental elements of the crime charged.” Id., at 13. But as his counsel made certain beyond doubt in his reply brief, “Eric’s Point I is and always has been an attack on the rule of State v. Mott, which both courts below held applicable and binding. Mott announced a categorical ‘rejection of the use of psychological testimony to challenge the mens rea element of a crime,’ and upheld this rule against federal due process challenge.” Reply Brief for Petitioner 2 (citations omitted). This explanation is supported by other statements in Clark’s briefs in both the State Court of Appeals and this Court, replete with the consistently maintained claim that it was error to limit evidence of mental illness and incapacity to its bearing on the insanity defense, excluding it from consideration on the element of mens rea. See, e.g., Appellant’s Opening Brief 46, 47, 51; Brief for Petitioner 11, 13, 16, 20–23. In sum, the trial court’s ruling, with its uncertain edges, may have restricted observation evidence admissible on mens rea to the insanity defense alone, but we cannot be sure.[Footnote 34] But because a due process challenge to such a restriction of observation evidence was, by our measure, neither pressed nor passed upon in the Arizona Court of Appeals, we do not consider it. See, e.g., Kentucky v. Stincer, 482 U. S. 730, 747, n. 22 (1987); Illinois v. Gates, 462 U. S. 213, 217–224 (1983). What we do know, and now consider, is Clark’s claim that Mott denied due process because it “preclude[d] Eric from contending that … factual inferences” of the “mental states which were necessary elements of the crime charged” “should not be drawn because the behavior was explainable, instead, as a manifestation of his chronic paranoid schizophrenia.” Brief for Petitioner 13 (emphasis in original). We consider the claim, as Clark otherwise puts it, that “Arizona’s prohibition of ‘diminished capacity’ evidence by criminal defendants violates” due process, ibid. D Clark’s argument that the Mott rule violates the Fourteenth Amendment guarantee of due process turns on the application of the presumption of innocence in criminal cases, the presumption of sanity, and the principle that a criminal defendant is entitled to present relevant and favorable evidence on an element of the offense charged against him. 1 The first presumption is that a defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense charged, see Patterson, 432 U. S., at 210–211; In re Winship, 397 U. S. 358, 361–364 (1970), including the mental element or mens rea. Before the last century, the mens rea required to be proven for particular offenses was often described in general terms like “malice,” see, e.g., In re Eckart, 166 U. S. 481 (1897); 4 W. Blackstone, Commentaries *21 (“[A]n unwarrantable act without a vicious will is no crime at all”), but the modern tendency has been toward more specific descriptions, as shown in the Arizona statute defining the murder charged against Clark: the State had to prove that in acting to kill the victim, Clark intended to kill a law enforcement officer on duty or knew that the victim was such an officer on duty. See generally Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635. As applied to mens rea (and every other element), the force of the presumption of innocence is measured by the force of the showing needed to overcome it, which is proof beyond a reasonable doubt that a defendant’s state of mind was in fact what the charge states. See Winship, supra, at 361–363. 2 The presumption of sanity is equally universal in some variety or other, being (at least) a presumption that a defendant has the capacity to form the mens rea necessary for a verdict of guilt and the consequent criminal responsibility. See Leland, 343 U. S., at 799; Davis v. United States, 160 U. S. 469, 486–487 (1895); M’Naghten’s Case, 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722; see generally 1 LaFave, Substantive Criminal Law §8.3(a), at 598–599, and n. 1. This presumption dispenses with a requirement on the government’s part to include as an element of every criminal charge an allegation that the defendant had such a capacity.[Footnote 35] The force of this presumption, like the presumption of innocence, is measured by the quantum of evidence necessary to overcome it; unlike the presumption of innocence, however, the force of the presumption of sanity varies across the many state and federal jurisdictions, and prior law has recognized considerable leeway on the part of the legislative branch in defining the presumption’s strength through the kind of evidence and degree of persuasiveness necessary to overcome it, see Fisher v. United States, 328 U. S. 463, 466–476 (1946).[Footnote 36] There are two points where the sanity or capacity presumption may be placed in issue. First, a State may allow a defendant to introduce (and a factfinder to consider) evidence of mental disease or incapacity for the bearing it can have on the government’s burden to show mens rea. See, e.g., State v. Perez, 882 A. 2d 574, 584 (R. I. 2005).[Footnote 37] In such States the evidence showing incapacity to form the guilty state of mind, for example, qualifies the probative force of other evidence, which considered alone indicates that the defendant actually formed the guilty state of mind. If it is shown that a defendant with mental disease thinks all blond people are robots, he could not have intended to kill a person when he shot a man with blond hair, even though he seemed to act like a man shooting another man.[Footnote 38] In jurisdictions that allow mental-disease and capacity evidence to be considered on par with any other relevant evidence when deciding whether the prosecution has proven mens rea beyond a reasonable doubt, the evidence of mental disease or incapacity need only support what the factfinder regards as a reasonable doubt about the capacity to form (or the actual formation of) the mens rea, in order to require acquittal of the charge. Thus, in these States the strength of the presumption of sanity is no greater than the strength of the evidence of abnormal mental state that the factfinder thinks is enough to raise a reasonable doubt. The second point where the force of the presumption of sanity may be tested is in the consideration of a defense of insanity raised by a defendant. Insanity rules like M’Naghten and the variants discussed in Part II, supra, are attempts to define, or at least to indicate, the kinds of mental differences that overcome the presumption of sanity or capacity and therefore excuse a defendant from customary criminal responsibility, see Jones, 463 U. S., at 373, n. 4 (Brennan, J., dissenting); D. Hermann, The Insanity Defense: Philosophical, Historical and Legal Perspectives 4 (1983) (“A central significance of the insanity defense … is the separation of nonblameworthy from blameworthy offenders”), even if the prosecution has otherwise overcome the presumption of innocence by convincing the factfinder of all the elements charged beyond a reasonable doubt. The burden that must be carried by a defendant who raises the insanity issue, again, defines the strength of the sanity presumption. A State may provide, for example, that whenever the defendant raises a claim of insanity by some quantum of credible evidence, the presumption disappears and the government must prove sanity to a specified degree of certainty (whether beyond reasonable doubt or something less). See, e.g., Commonwealth v. Keita, 429 Mass. 843, 846, 712 N. E. 2d 65, 68 (1999). Or a jurisdiction may place the burden of persuasion on a defendant to prove insanity as the applicable law defines it, whether by a preponderance of the evidence or to some more convincing degree, see Ariz. Rev. Stat. Ann. §13–502(C) (West 2001); Leland, 343 U. S., at 798. In any case, the defendant’s burden defines the presumption of sanity, whether that burden be to burst a bubble or to show something more. 3 The third principle implicated by Clark’s argument is a defendant’s right as a matter of simple due process to present evidence favorable to himself on an element that must be proven to convict him.[Footnote 39] As already noted, evidence tending to show that a defendant suffers from mental disease and lacks capacity to form mens rea is relevant to rebut evidence that he did in fact form the required mens rea at the time in question; this is the reason that Clark claims a right to require the factfinder in this case to consider testimony about his mental illness and his incapacity directly, when weighing the persuasiveness of other evidence tending to show mens rea, which the prosecution has the burden to prove. As Clark recognizes, however, the right to introduce relevant evidence can be curtailed if there is a good reason for doing that. “While the Constitution … prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U. S. ___, ___ (2006) (slip op., at 6); see Crane v. Kentucky, 476 U. S. 683, 689–690 (1986) (permitting exclusion of evidence that “poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues’ ” (quoting Delaware v. Van Arsdall, 475 U. S. 673, 679 (1986))); see also Egelhoff, 518 U. S. 37; Chambers v. Mississippi, 410 U. S. 284, 302 (1973). And if evidence may be kept out entirely, its consideration may be subject to limitation, which Arizona claims the power to impose here. State law says that evidence of mental disease and incapacity may be introduced and considered, and if sufficiently forceful to satisfy the defendant’s burden of proof under the insanity rule it will displace the presumption of sanity and excuse from criminal responsibility. But mental-disease and capacity evidence may be considered only for its bearing on the insanity defense, and it will avail a defendant only if it is persuasive enough to satisfy the defendant’s burden as defined by the terms of that defense. The mental-disease and capacity evidence is thus being channeled or restricted to one issue and given effect only if the defendant carries the burden to convince the factfinder of insanity; the evidence is not being excluded entirely, and the question is whether reasons for requiring it to be channeled and restricted are good enough to satisfy the standard of fundamental fairness that due process requires. We think they are. E 1 The first reason supporting the Mott rule is Arizona’s authority to define its presumption of sanity (or capacity or responsibility) by choosing an insanity definition, as discussed in Part II, supra, and by placing the burden of persuasion on defendants who claim incapacity as an excuse from customary criminal responsibility. No one, certainly not Clark here, denies that a State may place a burden of persuasion on a defendant claiming insanity, see Leland, supra, at 797–799 (permitting a State, consistent with due process, to require the defendant to bear this burden). And Clark presses no objection to Arizona’s decision to require persuasion to a clear and convincing degree before the presumption of sanity and normal responsibility is overcome. See Brief for Petitioner 18, n. 25. But if a State is to have this authority in practice as well as in theory, it must be able to deny a defendant the opportunity to displace the presumption of sanity more easily when addressing a different issue in the course of the criminal trial. Yet, as we have explained, just such an opportunity would be available if expert testimony of mental disease and incapacity could be considered for whatever a factfinder might think it was worth on the issue of mens rea.[Footnote 40] As we mentioned, the presumption of sanity would then be only as strong as the evidence a factfinder would accept as enough to raise a reasonable doubt about mens rea for the crime charged; once reasonable doubt was found, acquittal would be required, and the standards established for the defense of insanity would go by the boards. Now, a State is of course free to accept such a possibility in its law. After all, it is free to define the insanity defense by treating the presumption of sanity as a bursting bubble, whose disappearance shifts the burden to the prosecution to prove sanity whenever a defendant presents any credible evidence of mental disease or incapacity. In States with this kind of insanity rule, the legislature may well be willing to allow such evidence to be considered on the mens rea element for whatever the factfinder thinks it is worth. What counts for due process, however, is simply that a State that wishes to avoid a second avenue for exploring capacity, less stringent for a defendant, has a good reason for confining the consideration of evidence of mental disease and incapacity to the insanity defense. It is obvious that Arizona’s Mott rule reflects such a choice. The State Supreme Court pointed out that the State had declined to adopt a defense of diminished capacity (allowing a jury to decide when to excuse a defendant because of greater than normal difficulty in conforming to the law).[Footnote 41] The court reasoned that the State’s choice would be undercut if evidence of incapacity could be considered for whatever a jury might think sufficient to raise a reasonable doubt about mens rea, even if it did not show insanity. 187 Ariz., at 541, 931 P. 2d, at 1051. In other words, if a jury were free to decide how much evidence of mental disease and incapacity was enough to counter evidence of mens rea to the point of creating a reasonable doubt, that would in functional terms be analogous to allowing jurors to decide upon some degree of diminished capacity to obey the law, a degree set by them, that would prevail as a stand-alone defense.[Footnote 42] 2 A State’s insistence on preserving its chosen standard of legal insanity cannot be the sole reason for a rule like Mott, however, for it fails to answer an objection the dissent makes in this case. See post, at 10–18 (opinion of Kennedy, J.). An insanity rule gives a defendant already found guilty the opportunity to excuse his conduct by showing he was insane when he acted, that is, that he did not have the mental capacity for conventional guilt and criminal responsibility. But, as the dissent argues, if the same evidence that affirmatively shows he was not guilty by reason of insanity (or “guilty except insane” under Arizona law, Ariz. Rev. Stat. Ann. §13–502(A) (West 2001)) also shows it was at least doubtful that he could form mens rea, then he should not be found guilty in the first place; it thus violates due process when the State impedes him from using mental-disease and capacity evidence directly to rebut the prosecution’s evidence that he did form mens rea. Are there, then, characteristics of mental-disease and capacity evidence giving rise to risks that may reasonably be hedged by channeling the consideration of such evidence to the insanity issue on which, in States like Arizona, a defendant has the burden of persuasion? We think there are: in the controversial character of some categories of mental disease, in the potential of mental-disease evidence to mislead, and in the danger of according greater certainty to capacity evidence than experts claim for it. To begin with, the diagnosis may mask vigorous debate within the profession about the very contours of the mental disease itself. See, e.g., American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxxiii (4th ed. text rev. 2000) (hereinafter DSM–IV–TR) (“DSM–IV reflects a consensus about the classification and diagnosis of mental disorders derived at the time of its initial publication. New knowledge generated by research or clinical experience will undoubtedly lead to an increased understanding of the disorders included in DSM–IV, to the identification of new disorders, and to the removal of some disorders in future classifications. The text and criteria sets included in DSM–IV will require reconsideration in light of evolving new information”); P. Caplan, They Say You’re Crazy: How the World’s Most Powerful Psychiatrists Decide Who’s Normal (1995) (criticism by former consultant to the DSM against some of the DSM’s categories). And Members of this Court have previously recognized that the end of such debate is not imminent. See Jones, 463 U. S., at 364–365, n. 13 (“ ‘The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment’ ” (quoting Greenwood v. United States, 350 U. S. 366, 375 (1956))); Powell v. Texas, 392 U. S. 514, 537 (1968) (plurality opinion) (“It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear … to doctors”). Though we certainly do not “condem[n mental-disease evidence] wholesale”, Brief for American Psychiatric Association et al. as Amici Curiae 15, the consequence of this professional ferment is a general caution in treating psychological classifications as predicates for excusing otherwise criminal conduct. Next, there is the potential of mental-disease evidence to mislead jurors (when they are the factfinders) through the power of this kind of evidence to suggest that a defendant suffering from a recognized mental disease lacks cognitive, moral, volitional, or other capacity, when that may not be a sound conclusion at all. Even when a category of mental disease is broadly accepted and the assignment of a defendant’s behavior to that category is uncontroversial, the classification may suggest something very significant about a defendant’s capacity, when in fact the classification tells us little or nothing about the ability of the defendant to form mens rea or to exercise the cognitive, moral, or volitional capacities that define legal sanity.[Footnote 43] See DSM–IV–TR xxxii–xxxiii (“When the DSM–IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM–IV mental disorder is not sufficient to establish the existence for legal purposes of … ‘mental diseas[e]’ or ‘mental defect.’ In determining whether an individual meets a specified legal standard (e.g., for … criminal responsibility …), additional information is usually required beyond that contained in the DSM–IV diagnosis”). The limits of the utility of a professional disease diagnosis are evident in the dispute between the two testifying experts in this case; they agree that Clark was schizophrenic, but they come to opposite conclusions on whether the mental disease in his particular case left him bereft of cognitive or moral capacity. Evidence of mental disease, then, can easily mislead; it is very easy to slide from evidence that an individual with a professionally recognized mental disease is very different, into doubting that he has the capacity to form mens rea, whereas that doubt may not be justified. And of course, in the cases mentioned before, in which the categorization is doubtful or the category of mental disease is itself subject to controversy, the risks are even greater that opinions about mental disease may confuse a jury into thinking the opinions show more than they do. Because allowing mental-disease evidence on mens rea can thus easily mislead, it is not unreasonable to address that tendency by con- fining consideration of this kind of evidence to insanity, on which a defendant may be assigned the burden of persuasion. There are, finally, particular risks inherent in the opinions of the experts who supplement the mental-disease classifications with opinions on incapacity: on whether the mental disease rendered a particular defendant incapable of the cognition necessary for moral judgment or mens rea or otherwise incapable of understanding the wrongfulness of the conduct charged. Unlike observational evidence bearing on mens rea, capacity evidence consists of judgment, and judgment fraught with multiple perils: a defendant’s state of mind at the crucial moment can be elusive no matter how conscientious the enquiry, and the law’s categories that set the terms of the capacity judgment are not the categories of psychology that govern the expert’s professional thinking. Although such capacity judgments may be given in the utmost good faith, their potentially tenuous character is indicated by the candor of the defense expert in this very case. Contrary to the State’s expert, he testified that Clark lacked the capacity to appreciate the circumstances realistically and to understand the wrongfulness of what he was doing, App. 48–49, but he said that “no one knows exactly what was on [his] mind” at the time of the shooting, id., at 48. And even when an expert is confident that his understanding of the mind is reliable, judgment addressing the basic categories of capacity requires a leap from the concepts of psychology, which are devised for thinking about treatment, to the concepts of legal sanity, which are devised for thinking about criminal responsibility. See Insanity Defense Work Group, American Psychiatric Association Statement on the Insanity Defense, 140 Am. J. Psychiatry 681, 686 (1983), reprinted in 2 The Role of Mental Illness in Criminal Trials 117, 122 (J. Moriarty ed. 2001) (“The American Psychiatric Association is not opposed to legislatures restricting psychiatric testimony about the … ultimate legal issues concerning the insanity defense… . When … ‘ultimate issue’ questions are formulated by the law and put to the expert witness who must then say ‘yea’ or ‘nay,’ then the expert witness is required to make a leap in logic. He no longer addresses himself to medical concepts but instead must infer or intuit what is in fact unspeakable, namely, the probable relationship between medical concepts and legal or moral constructs such as free will. These impermissible leaps in logic made by expert witnesses confuse the jury… . This state of affairs does considerable injustice to psychiatry and, we believe, possibly to criminal defendants. These psychiatric disagreements … cause less than fully understanding juries or the public to conclude that psychiatrists cannot agree. In fact, in many criminal insanity trials both prosecution and defense psychiatrists do agree about the nature and even the extent of mental disorder exhibited by the defendant at the time of the act” (emphasis in original; footnote omitted)); DSM–IV–TR xxxii–xxxiii; P. Giannelli & E. Imwinkelried, Scientific Evidence §9–3(B), p. 286 (1986) (“[N]o matter how the test for insanity is phrased, a psychiatrist or psychologist is no more qualified than any other person to give an opinion about whether a particular defendant’s mental condition satisfies the legal test for insanity”); cf. R. Slovenko, Psychiatry and Criminal Culpability 55 (1995) (“The scope of the DSM is wide-ranging and includes ‘conduct disorders’ but ‘evil’ is not mentioned”). In sum, these empirical and conceptual problems add up to a real risk that an expert’s judgment in giving capacity evidence will come with an apparent authority that psychologists and psychiatrists do not claim to have. We think that this risk, like the difficulty in assessing the significance of mental-disease evidence, supports the State’s decision to channel such expert testimony to consideration on the insanity defense, on which the party seeking the benefit of this evidence has the burden of persuasion. It bears repeating that not every State will find it worthwhile to make the judgment Arizona has made, and the choices the States do make about dealing with the risks posed by mental-disease and capacity evidence will reflect their varying assessments about the presumption of sanity as expressed in choices of insanity rules.[Footnote 44] The point here simply is that Arizona has sensible reasons to assign the risks as it has done by channeling the evidence.[Footnote 45] F Arizona’s rule serves to preserve the State’s chosen standard for recognizing insanity as a defense and to avoid confusion and misunderstanding on the part of jurors.[Footnote 46] For these reasons, there is no violation of due process under Chambers and its progeny, and no cause to claim that channeling evidence on mental disease and capacity offends any “ ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Patterson, 432 U. S., at 202 (quoting Speiser, 357 U. S., at 523). * * * The judgment of the Court of Appeals of Arizona is, accordingly, affirmed. It is so ordered. Footnote 1 Section 13–1105(A)(3) provides that “[a] person commits first degree murder if … [i]ntending or knowing that the person’s conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty.” Footnote 2 Section 13–502(A) provides in full that “A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. A mental disease or defect constituting legal insanity is an affirmative defense. Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct.” A defendant found “guilty except insane” is committed to a state mental health facility for treatment. See §13–502(D). Footnote 3 The trial court permitted Clark to introduce this evidence, whether primarily going to insanity or lack of intent, “because it goes to the insanity issue and because we’re not in front of a jury.” App. 9. It also allowed him to make an offer of proof as to intent to preserve the issue on appeal. Ibid. Footnote 4 Clark did not at this time make an additional offer of proof, as contemplated by the trial court when it ruled that it would consider evidence bearing on insanity as to insanity but not as to mens rea. See n. 3, supra. Footnote 5 This statutory standard followed the Arizona Supreme Court’s declaration that Arizona has “uniformly adhered” to the two-part M’Naghten standard. State v. Schantz, 98 Ariz. 200, 206, 403 P. 2d 521, 525 (1965) (citing cases), cert. denied, 382 U. S. 1015 (1966). Footnote 6 This change was accompanied by others, principally an enumeration of mental states excluded from the category of “mental disease or defect,” such as voluntary intoxication and other conditions, and a change of the insanity verdict from “not responsible for criminal conduct” by reason of insanity to “guilty except insane.” See 1993 Ariz. Sess. Laws ch. 256, §§2–3. The 1993 amendments were prompted, at least in part, by an acquittal by reason of insanity in a murder case. See Note, Arizona’s Insane Response to Insanity, 40 Ariz. L. Rev. 287, 290 (1998). Footnote 7 “Capacity” is understood to mean the ability to form a certain state of mind or motive, understand or evaluate one’s actions, or control them. Footnote 8 See Queen v. Oxford, 9 Car. & P. 525, 546, 173 Eng. Rep. 941, 950 (1840) (“If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible”); Hadfield’s Case, 27 How. St. Tr. 1281, 1314–1315, 1354–1355 (K. B. 1800). But cf. Queen v. Burton, 3 F. & F. 772, 780, 176 Eng. Rep. 354, 357 (1863) (rejecting the irresistible-impulse test as “a most dangerous doctrine”). Footnote 9 E.g., Parsons v. State, 81 Ala. 577, 2 So. 854 (1887); State v. Thompson, Wright’s Ohio Rep. 617 (1834). Footnote 10 State v. Jones, 50 N. H. 369 (1871); State v. Pike, 49 N. H. 399 (1870). Footnote 11 This distillation of the Anglo-American insanity standards into combinations of four building blocks should not be read to signify that no other components contribute to these insanity standards or that there are no material distinctions between jurisdictions testing insanity with the same building blocks. For example, the jurisdictions limit, in varying degrees, which sorts of mental illness or defect can give rise to a successful insanity defense. Compare, e.g., Ariz. Rev. Stat. Ann. §13–502(A) (West 2001) (excluding from definition of “mental disease or defect” acute voluntary intoxication, withdrawal from alcohol or drugs, character defects, psychosexual disorders, and impulse control disorders) with, e.g., Ind. Code §35–41–3–6(b) (West 2004) (excluding from definition of “mental disease or defect” “abnormality manifested only by repeated unlawful or antisocial conduct”). We need not compare the standards under a finer lens because our coarser analysis shows that the standards vary significantly. Footnote 12 See 18 U. S. C. §17; Ala. Code §13A–3–1 (1994); Cal. Penal Code Ann. §25 (West 1999); Colo. Rev. Stat. §16–8–101.5 (2005); Fla. Stat. §775.027 (2003); Iowa Code §701.4 (2005); Minn. Stat. §611.026 (2004); Stevens v. State, 806 So. 2d 1031, 1050–1051 (Miss. 2001); Mo. Rev. Stat. §562.086 (2000); State v. Harms, 263 Neb. 814, 836–837, 643 N. W. 2d 359, 378–379 (2002); Nev. Rev. Stat. §194.010 (2003); Finger v. State, 117 Nev. 548, 553–577, 27 P. 3d 66, 70–85 (2001); N. J. Stat. Ann. §2C:4–1 (West 2005); N. Y. Penal Law Ann. §40.15 (West 2004); State v. Thompson, 328 N. C. 477, 485–486, 402 S. E. 2d 386, 390 (1991); Burrows v. State, 640 P. 2d 533, 540–541 (Okla. Crim. App. 1982) (interpreting statutory language excusing from criminal responsibility mentally ill defendants when “at the time of committing the act charged against them they were incapable of knowing its wrongfulness,” Okla. Stat., Tit. 21, §152(4) (West 2001), to mean the two-part M’Naghten test); 18 Pa. Cons. Stat. §315 (2002); Tenn. Code Ann. §39–11–501 (2002); Wash. Rev. Code §9A.12.010 (2004). North Dakota has a unique test, which appears to be a modified version of M’Naghten, asking whether a defendant “lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality,” N. D. Cent. Code Ann. §12.1–04.1–01(1)(a) (Lexis 1997), when “[i]t is an essential element of the crime charged that the individual act willfully,” §12.1–04.1–01(1)(b). Footnote 13 Alaska Stat. §12.47.010 (2004). Footnote 14 Ariz. Rev. Stat. Ann. §13–502 (West 2001); Del. Code Ann., Tit. 11, §401 (1995); Ind. Code §35–41–3–6 (West 2004); Ill. Comp. Stat., ch. 720, §5/6-2 (West 2004); La. Stat. Ann. §14:14 (West 1997); Me. Rev. Stat. Ann., Tit. 17–A, §39 (2006); Ohio Rev. Code Ann. §2901.01(A)(14) (Lexis 2006); S. C. Code Ann. §17–24–10 (2003); S. D. Codified Laws §22–1–2(20) (2005 Supp. Pamphlet); Tex. Penal Code Ann. §8.01 (West 2003). Footnote 15 ALI, Model Penal Code §4.01(1) (Proposed Official Draft 1962) (“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law”). Footnote 16 Ark. Code Ann. §5–2–312 (2006); Conn. Gen. Stat. §53a–13 (2005); Malede v. United States, 767 A. 2d 267, 269 (D. C. 2001); Ga. Code Ann. §§16–3–2, 16–3–3 (2003); Haw. Rev. Stat. §704–400 (1993); Ky. Rev. Stat. Ann. §504.020 (West 2003); Md. Crim. Proc. Code Ann. §3–109 (Lexis 2001); Commonwealth v. McLaughlin, 431 Mass. 506, 508, 729 N. E. 2d 252, 255 (2000); Ore. Rev. Stat. §161.295 (2005); State v. Martinez, 651 A. 2d 1189, 1193 (R. I. 1994); Vt. Stat. Ann., Tit. 13, §4801 (1998); State v. Lockhart, 208 W. Va. 622, 630, 542 S. E. 2d 443, 451 (2000); Wis. Stat. §971.15 (2003–2004); Wyo. Stat. Ann. §7–11–304 (2005). Footnote 17 Mich. Comp. Laws Ann. §768.21a (West 2000); State v. Hartley, 90 N. M. 488, 490–491, 565 P. 2d 658, 660–661 (1977); Bennett v. Commonwealth, 29 Va. App. 261, 277, 511 S. E. 2d 439, 446–447 (1999). Footnote 18 State v. Plante, 134 N. H. 456, 461, 594 A. 2d 1279, 1283 (1991). Footnote 19 See, e.g., Alaska Stat. §§12.47.020(c), 12.47.030 (2004); Del. Code Ann., Tit. 11, §401 (1995); Ga. Code Ann. §17–7–131 (2004); Ill. Comp. Stat., ch. 720, §5/6–2 (West 2004); Ind. Code §§35–35–2–1, 35–36–1–1, 35–36–2–3 (West 2004); Ky. Rev. Stat. Ann. §504.130 (West 2003); Mich. Comp. Laws Ann. §768.36 (West Supp. 2006); N. M. Stat. Ann. §31–9–3 (2000); 18 Pa. Cons. Stat. §314 (2002); S. C. Code Ann. §17–24–20 (2003); S. D. Codified Laws §23A–26–14 (2004). Usually, a defendant found “guilty but mentally ill” will receive mental-health treatment until his mental health has rebounded, at which point he must serve the remainder of his imposed sentence. See, e.g., Alaska Stat. §12.47.050 (2004). Footnote 20 Idaho Code §18–207 (Lexis 2004); Kan. Stat. Ann. §22–3220 (1995); Mont. Code Ann. §§46–14–102, 46–14–311 (2005); Utah Code Ann. §76–2–305 (Lexis 2003). We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require. This case does not call upon us to decide the matter. Footnote 21 §§77–16a–101, 77–16a–103, 77–16a–104 (Lexis 2003). Footnote 22 See statutes cited in n. 20, supra. Footnote 23He might, of course, have thought delusively he was doing something just as wrongful as the act charged against him, but this is not the test: he must have understood that he was committing the act charged and that it was wrongful, see Ariz. Rev. Stat. Ann. §13–502(A) (West 2001) (“A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong”). Footnote 24 We think this logic holds true in the face of the usual rule of statutory construction of “ ‘ “giv[ing] effect, if possible, to every clause and word of a statute,” ’ ” Duncan v. Walker, 533 U. S. 167, 174 (2001) (quoting United States v. Menasche, 348 U. S. 528, 538–539 (1955)); see also 2 J. Sutherland, Statutes and Statutory Construction §4705 (3d ed. 1943). Insanity standards are formulated to guide the factfinder to determine the blameworthiness of a mentally ill defendant. See, e.g., Jones v. United States, 463 U. S. 354, 373, n. 4 (1983) (Brennan, J., dissenting). The M’Naghten test is a sequential test, first asking the factfinder to conduct the easier enquiry whether a defendant knew the nature and quality of his actions. If not, the defendant is to be considered insane and there is no need to pass to the harder and broader enquiry whether the defendant knew his actions were wrong. And, because, owing to this sequence, the factfinder is to ask whether a defendant lacks moral capacity only when he possesses cognitive capacity, the only defendants who will be found to lack moral capacity are those possessing cognitive capacity. Cf. 2 C. Torcia, Wharton’s Criminal Law §101 (15th ed. 1994). Though, before 1993, Arizona had in place the full M’Naghten test with this sequential enquiry, see, e.g., Schantz, 98 Ariz., at 207, 403 P. 2d, at 525, it would appear that the legislature eliminated the cognitive capacity part not to change the meaning of the insanity standard but to implement its judgment that a streamlined standard with only the moral capacity part would be easier for the jury to apply, see Arizona House of Representative Judiciary Committee Notes 3 (Mar. 18, 1993); 1 R. Gerber, Criminal Law of Arizona 502–6, 502–11 (2d ed. 1993 and Supp. 2000). This is corroborated by the State’s choice for many years against revising the applicable recommended jury instruction (enumerating the complete M’Naghten test) in order to match the amended statutory standard. See 1 Gerber, supra, at 502–6. Footnote 25 We thus think the dissent reads Mott too broadly. See post, at 6–7 (opinion of Kennedy, J.) (no distinction between observation and mental-disease testimony, see infra, at 16–17, or lay and expert). Footnote 26 The more natural reading of Mott suggests to us that this evidence cannot be considered as to mens rea even if the defendant establishes his insanity, though one might read Mott otherwise. Footnote 27 Clark’s parents testified that, in the months before the shooting and even days beforehand, Clark called them “aliens” and thought that “aliens” were out to get him. See, e.g., Tr. of Bench Trial in No. CR 2000–538, pp. 110–112, 136, 226–228 (Aug. 20, 2003). One night before the shooting, according to Clark’s mother, Clark repeatedly viewed a popular film characterized by her as telling a story about “aliens” masquerading as government agents, a story Clark insisted was real despite his mother’s protestations to the contrary. See id., at 59–60 (Aug. 21, 2003). And two months after the shooting, Clark purportedly told his parents that his hometown, Flagstaff, was inhabited principally by “aliens,” who had to be stopped, and that the only way to stop them was with bullets. See, e.g., id., at 131–132 (Aug. 20, 2003); id., at 24–25 (Aug. 21, 2003). Footnote 28 This is contrary to the dissent’s understanding. See post, at 2–3 (opinion of Kennedy, J.). Footnote 29 In conflict with the dissent’s characterization, see post, at 2 (opinion of Kennedy, J.), it does not always, however, come from experts. Footnote 30Arizona permits capacity evidence, see, e.g., State v. Sanchez, 117 Ariz. 369, 373, 573 P. 2d 60, 64 (1977); see also Ariz. Rule Evid. 704 (2006) (allowing otherwise admissible evidence on testimony “embrac[ing] an ultimate issue to be decided by the trier of fact”), though not every jurisdiction permits such evidence on the ultimate issue of insanity. See, e.g., Fed. Rule Evid. 704(b) (“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. Such ultimate issues are matters for the trier of fact alone”); United States v. Dixon, 185 F. 3d 393, 400 (CA5 1999) (in the face of mental-disease evidence, Rule 704(b) prohibits an expert “from testifying that [the mental-disease evidence] does or does not prevent the defendant from appreciating the wrongfulness of his actions”). Footnote 31 Arizona permits evidence bearing on insanity to be presented by either lay or expert witnesses. See State v. Bay, 150 Ariz. 112, 116, 722 P. 2d 280, 284 (1986). According to Bay, “[f]oundationally, a lay witness must have had an opportunity to observe the past conduct and history of a defendant; the fact that he is a lay witness goes not to the admissibility of the testimony but rather to its weight.” Ibid. (citation omitted); see also State v. Hughes, 193 Ariz. 72, 83, 969 P. 2d 1184, 1195 (1998). In fact, a defendant can theoretically establish insanity solely via lay testimony. See Bay, 150 Ariz., at 116, 722 P. 2d, at 284. But cf. State v. McMurtrey, 136 Ariz. 93, 100, 664 P. 2d 637, 644 (1983) (“[I]t is difficult to imagine how a defendant could place his or her sanity in issue … without expert testimony as to the defendant’s state of mind at the time of the crime”). Footnote 32 With respect to “the limited factual issues the trial court held it could consider under [Ariz. Rev. Stat. Ann. §]13–502 and Mott, defense counsel made no additional ‘offer of proof’ at the conclusion of the case but preserved [Clark’s] legal contentions by asking the court to consider all of the evidence presented in determining whether the state had proved its case.” Brief for Petitioner 10, n. 20 (citations omitted). Footnote 33 We do not agree with the State’s argument that the failure to make an offer of proof, see n. 4, supra, is a bar to pressing Clark’s claim about the admissibility of mental-illness or capacity evidence as to mens rea, see Brief for Respondent 27–29, especially when the Arizona Court of Appeals rejected Clark’s argument on the merits rather than clearly on this ground, see App. 351–353; see also Michigan v. Long, 463 U. S. 1032, 1042 (1983) (“[I]t is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and … it fairly appears that the state court rested its decision primarily on federal law”). Footnote 34We therefore have no reason to believe that the courts of Arizona would have failed to restrict their application of Mott to the professional testimony the Mott opinion was stated to cover, if Clark’s counsel had specified any observation evidence he claimed to be generally admissible and relevant to mens rea. Nothing that we hold here is authority for restricting a factfinder’s consideration of observation evidence indicating state of mind at the time of a criminal offense (conventional mens rea evidence) as distinct from professional mental-disease or capacity evidence going to ability to form a certain state of mind during a period that includes the time of the offense charged. And, of course, nothing held here prevents Clark from raising this discrete claim when the case returns to the courts of Arizona, if consistent with the State’s procedural rules. Footnote 35 A legislature is nonetheless free to require affirmative proof of sanity by the way it describes a criminal offense, see Dixon v. United States, ante, at ___ (slip op., at 7–9). Footnote 36 Although a desired evidentiary use is restricted, that is not equivalent to a Sandstrom presumption. See Sandstrom v. Montana, 442 U. S. 510, 514–524 (1979) (due process forbids use of presumption that relieves the prosecution of burden of proving mental state by inference of intent from an act). Footnote 37 In fact, Oregon had this scheme in place when we decided Leland v. Oregon, 343 U. S. 790, 794–796 (1952). We do not, however, read any part of Leland to require as a matter of due process that evidence of incapacity be considered to rebut the mens rea element of a crime. Footnote 38We reject the State’s argument that mens rea and insanity, as currently understood, are entirely distinguishable, so that mental-disease and capacity evidence relevant to insanity is simply irrelevant to mens rea. Not only does evidence accepted as showing insanity trump mens rea, but evidence of behavior close to the time of the act charged may indicate both the actual state of mind at that time and also an enduring incapacity to form the criminal state of mind necessary to the offense charged. See Brief for American Psychiatric Association et al. as Amici Curiae 12–13; Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum. L. Rev. 827, 834–835 (1977); cf. Powell v. Texas, 392 U. S. 514, 535–536 (1968) (plurality opinion) (the “doctrines of actus reus, mens rea, insanity, mistake, justification, and duress” are a “collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds”). Footnote 39 Clark’s argument assumes that Arizona’s rule is a rule of evidence, rather than a redefinition of mens rea, see Montana v. Egelhoff, 518 U. S. 37, 58–59 (1996) (Ginsburg, J., concurring in judgment); id., at 71 (O’Connor, J., dissenting). We have no reason to view the rule otherwise, and on this assumption, it does not violate due process, see infra, at 31–39. Footnote 40 Cf. post, at 3 (Kennedy, J., dissenting) (“The psychiatrist’s explanation of Clark’s condition was essential to understanding how he processes sensory data and therefore to deciding what information was in his mind at the time of the shooting. Simply put, knowledge relies on cognition, and cognition can be affected by schizophrenia”). Footnote 41 Though the term “diminished capacity” has been given different meanings, see, e.g., Morse, Undiminished Confusion in Diminished Capacity, 75 J. Crim. L. & C. 1 (1984) (“The diminished capacity doctrine allows a criminal defendant to introduce evidence of mental abnormality at trial either to negate a mental element of the crime charged, thereby exonerating the defendant of that charge, or to reduce the degree of crime for which the defendant may be convicted, even if the defendant’s conduct satisfied all the formal elements of a higher offense”), California, a jurisdiction with which the concept has traditionally been associated, understood it to be simply a “ ‘showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication,’ ” People v. Berry, 18 Cal. 3d 509, 517, 556 P. 2d 777, 781 (1976) (in banc) (quoting People v. Castillo, 70 Cal. 2d 264, 270, 449 P. 2d 449, 452 (1969); emphasis deleted), abrogated by Cal. Penal Code Ann. §§25(a), 28(a)–(b), 29 (West 1999 and Supp. 2006). Footnote 42 It is beyond question that Arizona may preclude such a defense, see Fisher v. United States, 328 U. S. 463, 466–476 (1946), and there is no doubt that the Arizona Legislature meant to do so, see Ariz. Rev. Stat. Ann. §13–502(A) (West 2001) (“Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct”). Footnote 43 Our observation about the impact of mental-disease evidence on understandings of capacity in no way undermines the assertion by the American Psychiatric Association, the American Psychological Association, and the American Academy of Psychiatry in this case that “[e]xpert evidence of mental disorders … is … relevant to the mental-state issues raised by mens rea requirements,” Brief for American Psychiatric Association et al. as Amici Curiae 15. Footnote 44 A State in which the burden of persuasion as to a defendant’s sanity lies with the prosecution might also be justified in restricting mental-disease and capacity evidence to insanity determinations owing to the potential of mental-disease evidence to mislead and the risk of misjudgment inherent in capacity evidence. We need not, in the context of this case, address that issue. Footnote 45 Arizona’s rule is supported by a further practical reason, though not as weighty as those just considered. As mentioned before, if substantial mental-disease and capacity evidence is accepted as rebutting mens rea in a given case, the affirmative defense of insanity will probably not be reached or ruled upon; the defendant will simply be acquitted (or perhaps convicted of a lesser included offense). If an acquitted defendant suffers from a mental disease or defect that makes him dangerous, he will neither be confined nor treated psychiatrically unless a judge so orders after some independent commitment proceeding. But if a defendant succeeds in showing himself insane, Arizona law (and presumably that of every other State with an insanity rule) will require commitment and treatment as a consequence of that finding without more. It makes sense, then, to channel capacity evidence to the issue structured to deal with mental incapacity when such a claim is raised successfully. See, e.g., Jones, 463 U. S., at 368 (“The purpose of commitment following an insanity acquittal … is to treat the individual’s mental illness and protect him and society from his potential dangerousness”). Footnote 46 The rule also deals in a practical way with those whose insanity has been shown to make them dangerous to others. See n. 45, supra.
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547.US.332
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The city of Toledo and State of Ohio sought to encourage DaimlerChrysler Corp. to expand its Toledo operations by offering it local property tax exemptions and a state franchise tax credit. A group of plaintiffs including Toledo residents who pay state and local taxes sued in state court, alleging that the tax breaks violated the Commerce Clause. The taxpayer plaintiffs claimed injury because the tax breaks depleted the state and local treasuries to which they contributed. Defendants removed the action to District Court. Plaintiffs moved to remand to state court because, inter alia, they doubted whether they satisfied either the constitutional or prudential limitations on standing in federal court. The District Court declined to remand the case, concluding that plaintiffs had standing under the “municipal taxpayer standing” rule articulated in Massachusetts v. Mellon, 262 U. S. 447. On the merits, the court found that neither tax benefit violated the Commerce Clause. Without addressing standing, the Sixth Circuit agreed as to the municipal tax exemption, but held that the state franchise tax credit violated the Commerce Clause. Defendants sought certiorari to review the invalidation of the franchise tax credit, and plaintiffs sought certiorari to review the upholding of the property tax exemption. This Court granted review to consider whether the franchise tax credit violates the Commerce Clause, and directed the parties to address the issue of standing. Held: Plaintiffs have not established their standing to challenge the state franchise tax credit. Because they have no standing to challenge that credit, the lower courts erred by considering their claims on the merits. Pp. 4–18. 1. State taxpayers have no standing under Article III to challenge state tax or spending decisions simply by virtue of their status as taxpayers. Pp. 4–13. (a) Before this Court can address the merits of plaintiffs’ challenge, it has an obligation to assure itself that the merits question is presented in a proper Article III “case” or “controversy.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. The case-or-controversy limitation is crucial in maintaining the “ ‘tripartite allocation of power’ ” set forth in the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474. “Article III standing … enforces the … case-or-controversy requirement.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11. The requisite elements of standing are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751. Plaintiffs, as the parties now asserting federal jurisdiction, must carry the burden of establishing their standing. Pp. 4–6. (b) Plaintiffs’ principal claim that the franchise tax credit depletes state funds to which they contribute through their taxes, and thus diminishes the total funds available for lawful uses and imposes disproportionate burdens on them, is insufficient to establish standing under Article III. This Court has denied federal taxpayers standing under Article III to object to a particular expenditure of federal funds simply because they are taxpayers. See, e.g., Valley Forge Christian College, supra, at 476–482. The animating principle behind cases such as Valley Forge was announced in Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, in which the Court observed that a federal taxpayer’s “interest in the moneys of the Treasury … is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Id., at 486–487. This rationale applies with undiminished force to state taxpayers who allege simply that a state fiscal decision will deplete the fisc and “impose disproportionate burdens on them.” See Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433–434. Because state budgets frequently have an array of tax and spending provisions that may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ ‘virtually continuing monitors of the wisdom and soundness’ ” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts. See Allen, supra, at 760–761. Pp. 7–11. (c) Also rejected is plaintiffs’ argument that they have state taxpayer standing on the ground that their Commerce Clause challenge is just like the Establishment Clause challenge this Court permitted in Flast v. Cohen, 392 U. S. 83, 105–106. Flast allowed an Establishment Clause challenge by federal taxpayers to a congressional action under Art. I, §8. Although Flast held out the possibility that “specific [constitutional] limitations” other than the Establishment Clause might support federal taxpayer standing, id., at 105, 85, only the Establishment Clause has been held to do so since Flast, see, e.g., Bowen v. Kendrick, 487 U. S. 589, 618. Plaintiffs’ reliance on Flast is misguided: Whatever rights plaintiffs have under the Commerce Clause, they are fundamentally unlike the right not to contribute even “three pence” to support a religious establishment that was upheld in Flast, 392 U. S., at 103. Indeed, plaintiffs compare the two Clauses at such a high level of generality that almost any constitutional constraint on government power could be likened to the Establishment Clause as interpreted in Flast. Id., at 105. And a finding that the Commerce Clause satisfies the Flast test because it often implicates governments’ fiscal decisions would leave no principled way of distinguishing other constitutional provisions that also constrain governments’ taxing and spending decisions. See, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221. Yet such a broad application of Flast’s exception to the general prohibition on taxpayer standing would be at odds with Flast’s own promise that it would not transform federal courts into forums for taxpayers’ “generalized grievances.” 392 U. S., at 106. Pp. 11–13. 2. Plaintiffs’ status as municipal taxpayers does not give them standing to challenge the state franchise tax credit at issue. This Court has noted with approval the standing of municipal taxpayers to enjoin the illegal use of a municipal corporation’s funds. See, e.g., Frothingham, supra, at 486–487. But plaintiffs’ attempts to leverage the notion of municipal taxpayer standing into standing to challenge the state tax credit are unavailing. Pp. 13–18. (a) Plaintiffs argue that because state law requires revenues from the franchise tax to be distributed to local governments, the award of a credit to DaimlerChrysler reduced such distributions and thus depleted the funds of local governments to which plaintiffs pay taxes. But plaintiffs’ challenge is still to the state law and state decision, not those of plaintiffs’ municipality. Their argument thus suffers from the same defects that the claim of state taxpayer standing exhibits. Pp. 14–15. (b) Also rejected is plaintiffs’ claim that their standing to challenge the municipal property tax exemption supports jurisdiction over their challenge to the franchise tax credit under the “supplemental jurisdiction” recognized in Mine Workers v. Gibbs, 383 U. S. 715. Gibbs held that federal-question jurisdiction over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be viewed as part of the same case because they “derive from a common nucleus of operative fact” as the federal claim. Id., at 725. Plaintiffs assume that Gibbs stands for the proposition that federal jurisdiction extends to all claims sufficiently related to a claim within Article III to be part of the same case, regardless of the deficiency that would keep the former claims out of federal court if presented on their own. This Court’s general approach to the application of Gibbs has been markedly more cautious. See, e.g., Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. ___, ___. The Court has never applied Gibbs’ rationale to permit a federal court to exercise supplemental jurisdiction over a claim that does not itself satisfy those elements of the Article III inquiry, such as constitutional standing, that “serv[e] to identify those disputes which are appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U. S. 149, 155. There is no reason to read Gibbs’ language as broadly as plaintiffs urge, particularly since the Court’s standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press, see, e.g., Allen, supra, at 752. If standing were commutative, as plaintiffs claim, the Court’s insistence that a plaintiff must demonstrate standing separately for each form of relief sought, see, e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 185, would make little sense when all claims for relief derive from a “common nucleus of operative fact,” as they appear to have in cases like Laidlaw. Such a reading of Gibbs would have remarkable implications. The doctrines of mootness, ripeness, and political question all originate in Article III’s “case” or “controversy” language, no less than standing does. See, e.g., National Park Hospitality Assn. v. Department of Interior, 538 U. S. 803, 808. Yet if Gibbs’ “common nucleus” formulation announced a new definition of “case” or “controversy” for all Article III purposes, a federal court would be free to entertain moot or unripe claims, or claims presenting a political question, if they “derived from” the same “operative fact[s]” as another federal claim suffering from none of these defects. Plaintiffs’ reading of Gibbs, therefore, would amount to a significant revision of the Court’s precedent interpreting Article III. With federal courts thus deciding issues they would not otherwise be authorized to decide, the “ ‘tripartite allocation of power’ ” that Article III is designed to maintain, Valley Forge, supra, at 474, would quickly erode, and the Court’s emphasis on the standing requirement’s role in maintaining this separation would be rendered hollow rhetoric, see Lewis v. Casey, 518 U. S. 343, 357. Pp. 15–18. 386 F. 3d 738, vacated in part and remanded. Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment. Together with No. 04–1724, Wilkins, Tax Commissioner for State of Ohio, et al. v. Cuno et al., also on certiorari to the same court.
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Jeeps were first mass-produced in 1941 for the U. S. Army by the Willys-Overland Motor Company in Toledo, Ohio. Nearly 60 years later, the city of Toledo and State of Ohio sought to encourage the current manufacturer of Jeeps—DaimlerChrysler—to expand its Jeep operation in Toledo, by offering local and state tax benefits for new investment. Taxpayers in Toledo sued, alleging that their local and state tax burdens were increased by the tax breaks for DaimlerChrysler, tax breaks that they asserted violated the Commerce Clause. The Court of Appeals agreed that a state tax credit offered under Ohio law violated the Commerce Clause, and state and local officials and DaimlerChrysler sought review in this Court. We are obligated before reaching this Commerce Clause question to determine whether the taxpayers who objected to the credit have standing to press their complaint in federal court. We conclude that they do not, and we therefore can proceed no further. I Ohio levies a franchise tax “upon corporations for the privilege of doing business in the state, owning or using a part or all of its capital or property in [the] state, or holding a certificate of compliance authorizing it to do business in [the] state.” Wesnovtek Corp. v. Wilkins, 105 Ohio St. 3d 312, 313, 2005–Ohio–1826, ¶2, 825 N. E. 2d 1099, 1100; see Ohio Rev. Code Ann. §5733.01 (Lexis 2005). A taxpayer that purchases “new manufacturing machinery and equipment” and installs it at sites in the State receives a credit against the franchise tax. See §5733.33(B)(1) (Lexis 1999).[Footnote 1] Municipalities in Ohio may also offer partial property tax waivers to businesses that agree to invest in qualifying areas. See §5709.62(C)(1)(a) (Lexis 2005). With consent from local school districts, the partial property tax waiver can be increased to a complete exemption. See §5709.62(D)(1). In 1998, DaimlerChrysler entered into a contract with the city of Toledo. Under the contract, DaimlerChrysler agreed to expand its Jeep assembly plant at Stickney Avenue in Toledo. In exchange, the city agreed to waive the property tax for the plant, with the consent of the two school districts in which the plant is located. Because DaimlerChrysler undertook to purchase and install “new manufacturing machinery and equipment,” it was also entitled to a credit against the state franchise tax. See §5733.33(B)(1) (Lexis 1999). Plaintiffs filed suit against various state and local officials and DaimlerChrysler in state court, alleging that these tax benefits violated the Commerce Clause. Most of the plaintiffs were residents of Toledo, who paid taxes to both the city of Toledo and State of Ohio. They claimed that they were injured because the tax breaks for DaimlerChrysler diminished the funds available to the city and State, imposing a “disproportionate burden” on plaintiffs. App. 18a, 23a, 28a.[Footnote 2] Defendants removed the action to the United States District Court for the Northern District of Ohio. See 28 U. S. C. §1441. Plaintiffs filed motions to remand the case to state court. See §1447(c). One of the grounds on which they sought remand concerned their standing. They professed “substantial doubts about their ability to satisfy either the constitutional or the prudential limitations on standing in the federal court,” and urged the District Court to avoid the issue entirely by remanding. Plaintiffs’ Supplemental Motion for Remand to State Court in No. 3:00cv7247, p. 13, Record Doc. 17 (footnote omitted). The District Court declined to remand the case, concluding that, “[a]t the bare minimum, the Plaintiffs who are taxpayers have standing to object to the property tax exemption and franchise tax credit statutes under the ‘municipal taxpayer standing’ rule articulated in Massachusetts v. Mellon, 262 U. S. 447 (1923).” App. 78a (citations omitted). On the merits, the District Court found that neither tax benefit violated the Commerce Clause. See 154 F. Supp. 2d 1196 (2001). The Court of Appeals for the Sixth Circuit agreed with the District Court as to the municipal property tax exemption, but held that the state franchise tax credit violated the Commerce Clause. See 386 F. 3d 738 (2004). The Court of Appeals did not address the issue of standing. Defendants sought certiorari to review the Sixth Circuit’s invalidation of the franchise tax credit and plaintiffs sought certiorari to review the upholding of the property tax exemption. We granted certiorari to consider whether the franchise tax credit violates the Commerce Clause, 545 U. S. ___ (2005); the Michigan Supreme Court had decided a similar question contrary to the Sixth Circuit’s analysis here. See Caterpillar, Inc. v. Dept. of Treasury, 440 Mich. 400, 488 N. W. 2d 182 (1992). We also asked the parties to address whether plaintiffs have standing to challenge the franchise tax credit in this litigation. II We have “an obligation to assure ourselves” of litigants’ standing under Article III. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180 (2000). We therefore begin by addressing plaintiffs’ claims that they have standing as taxpayers to challenge the franchise tax credit. A Chief Justice Marshall, in Marbury v. Madison, 1 Cranch 137 (1803), grounded the Federal Judiciary’s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of carrying out the judicial function of deciding cases. As Marshall explained, “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” Id., at 177. Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects “ ‘the proper—and properly limited—role of the courts in a democratic society,’ ” Allen v. Wright, 468 U. S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U. S. 490, 498 (1975)). If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so. This Court has recognized that the case-or-controversy limitation is crucial in maintaining the “ ‘tripartite allocation of power’ ” set forth in the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474 (1982) (quoting Flast v. Cohen, 392 U. S. 83, 95 (1968)). Marshall again made the point early on, this time in a speech in the House of Representatives. “A case in law or equity,” Marshall remarked, “was a term … of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984). As this Court has explained, “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)). The case-or-controversy requirement thus plays a critical role, and “Article III standing … enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11 (2004). The “core component” of the requirement that a litigant have standing to invoke the authority of a federal court “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). The requisite elements of this “core component derived directly from the Constitution” are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, supra, at 751. We have been asked to decide an important question of constitutional law concerning the Commerce Clause. But before we do so, we must find that the question is presented in a “case” or “controversy” that is, in James Madison’s words, “of a Judiciary Nature.” 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966). That requires plaintiffs, as the parties now asserting federal jurisdiction, to carry the burden of establishing their standing under Article III.[Footnote 3] B Plaintiffs principally claim standing by virtue of their status as Ohio taxpayers, alleging that the franchise tax credit “depletes the funds of the State of Ohio to which the Plaintiffs contribute through their tax payments” and thus “diminish[es] the total funds available for lawful uses and impos[es] disproportionate burdens on” them. App. 28a; see also Brief for Respondents 24. On several occasions, this Court has denied federal taxpayers standing under Article III to object to a particular expenditure of federal funds simply because they are taxpayers. Thus the alleged “deprivation of the fair and constitutional use of [a federal taxpayer’s] tax dollar” cannot support a challenge to the conveyance of Government land to a private religious college, Valley Forge, supra, at 476–482 (internal quotation marks and some brackets omitted), and “the interest of a taxpayer in the moneys of the federal treasury furnishes no basis” to argue that a federal agency’s loan practices are unconstitutional, Alabama Power Co. v. Ickes, 302 U. S. 464, 478 (1938); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974). The animating principle behind these cases was announced in their progenitor, Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447 (1923). In rejecting a claim that improper federal appropriations would “increase the burden of future taxation and thereby take [the plaintiff’s] property without due process of law,” the Court observed that a federal taxpayer’s “interest in the moneys of the Treasury … is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Id., at 486–487. This logic is equally applicable to taxpayer challenges to expenditures that deplete the treasury, and to taxpayer challenges to so-called “tax expenditures,” which reduce amounts available to the treasury by granting tax credits or exemptions. In either case, the alleged injury is based on the asserted effect of the allegedly illegal activity on public revenues, to which the taxpayer contributes. Standing has been rejected in such cases because the alleged injury is not “concrete and particularized,” Defenders of Wildlife, supra, at 560, but instead a grievance the taxpayer “suffers in some indefinite way in common with people generally,” Frothingham, supra, at 488. In addition, the injury is not “actual or imminent,” but instead “conjectural or hypothetical.” Defenders of Wildlife, supra, at 560 (internal quotation marks and citations omitted). As an initial matter, it is unclear that tax breaks of the sort at issue here do in fact deplete the treasury: The very point of the tax benefits is to spur economic activity, which in turn increases government revenues. In this very action, the Michigan plaintiffs claimed that they were injured because they lost out on the added revenues that would have accompanied DaimlerChrysler’s decision to expand facilities in Michigan. See n. 2, supra. Plaintiffs’ alleged injury is also “conjectural or hypothetical” in that it depends on how legislators respond to a reduction in revenue, if that is the consequence of the credit. Establishing injury requires speculating that elected officials will increase a taxpayer-plaintiff’s tax bill to make up a deficit; establishing redressability requires speculating that abolishing the challenged credit will redound to the benefit of the taxpayer because legislators will pass along the supposed increased revenue in the form of tax reductions. Neither sort of speculation suffices to support standing. See ASARCO Inc. v. Kadish, 490 U. S. 605, 614 (1989) (opinion of Kennedy, J.) (“[I]t is pure speculation whether the lawsuit would result in any actual tax relief for respondents”); Warth, 422 U. S., at 509 (criticizing a taxpayer standing claim for the “conjectural nature of the asserted injury”). A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him. To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment committed to the “broad and legitimate discretion” of lawmakers, which “the courts cannot presume either to control or to predict.” ASARCO, supra, at 615 (opinion of Kennedy, J.). Under such circumstances, we have no assurance that the asserted injury is “imminent”—that it is “certainly impending.” Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted); see Defenders of Wildlife, 504 U. S., at 564–565, n. 2. The foregoing rationale for rejecting federal taxpayer standing applies with undiminished force to state taxpayers. We indicated as much in Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952). In that case, we noted our earlier holdings that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect” to support standing to challenge “their manner of expenditure.” Id., at 433. We then “reiterate[d]” what we had said in rejecting a federal taxpayer challenge to a federal statute “as equally true when a state Act is assailed: ‘The [taxpayer] must be able to show … that he has sustained … some direct injury … and not merely that he suffers in some indefinite way in common with people generally.’ ” Id., at 433–434 (quoting Frothingham, supra, at 488); see ASARCO, supra, at 613–614 (opinion of Kennedy, J.) (“[W]e have likened state taxpayers to federal taxpayers” for purposes of taxpayer standing (citing Doremus, supra, at 434)). The allegations of injury that plaintiffs make in their complaint furnish no better basis for finding standing than those made in the cases where federal taxpayer standing was denied. Plaintiffs claim that DaimlerChrysler’s tax credit depletes the Ohio fisc and “impos[es] disproportionate burdens on [them].” App. 28a. This is no different from similar claims by federal taxpayers we have already rejected under Article III as insufficient to establish standing. See, e.g., Frothingham, 262 U. S., at 486 (allegation of injury that the effect of government spending “will be to increase the burden of future taxation and thereby take [plaintiff’s] property without due process of law”). State policymakers, no less than their federal counterparts, retain broad discretion to make “policy decisions” concerning state spending “in different ways … depending on their perceptions of wise state fiscal policy and myriad other circumstances.” ASARCO, supra, at 615 (opinion of Kennedy, J.). Federal courts may not assume a particular exercise of this state fiscal discretion in establishing standing; a party seeking federal jurisdiction cannot rely on such “[s]peculative inferences … to connect [his] injury to the challenged actions of [the defendant],” Simon, 426 U. S., at 45; see also Allen, 468 U. S., at 759. Indeed, because state budgets frequently contain an array of tax and spending provisions, any number of which may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ ‘virtually continuing monitors of the wisdom and soundness’ ” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts. See id., at 760–761 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)). For the foregoing reasons, we hold that state taxpayers have no standing under Article III to challenge state tax or spending decisions simply by virtue of their status as taxpayers.[Footnote 4] C Plaintiffs argue that an exception to the general prohibition on taxpayer standing should exist for Commerce Clause challenges to state tax or spending decisions, analogizing their Commerce Clause claim to the Establishment Clause challenge we permitted in Flast v. Cohen, 392 U. S. 83. Flast held that because “the Establishment Clause … specifically limit[s] the taxing and spending power conferred by Art. I, §8,” “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of” the Establishment Clause. Id., at 105–106. Flast held out the possibility that “other specific [constitutional] limitations” on Art. I, §8, might surmount the “barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers.” 392 U. S., at 105, 85. But as plaintiffs candidly concede, “only the Establishment Clause” has supported federal taxpayer suits since Flast. Brief for Respondents 12; see Bowen v. Kendrick, 487 U. S. 589, 618 (1988) (“Although we have considered the problem of standing and Article III limitations on federal jurisdiction many times since [Flast], we have consistently adhered to Flast and the narrow exception it created to the general rule against taxpayer standing”). Quite apart from whether the franchise tax credit is analogous to an exercise of congressional power under Art. I, §8, plaintiffs’ reliance on Flast is misguided: Whatever rights plaintiffs have under the Commerce Clause, they are fundamentally unlike the right not to “ ‘contribute three pence … for the support of any one [religious] establishment.’ ” 392 U. S., at 103 (quoting 2 Writings of James Madison 186 (G. Hunt ed. 1901)). Indeed, plaintiffs compare the Establishment Clause to the Commerce Clause at such a high level of generality that almost any constitutional constraint on government power would “specifically limit” a State’s taxing and spending power for Flast purposes. 392 U. S., at 105; see Brief for Respondents 14 (“In each case, the harm to be avoided by [the two clauses] is the loss of governmental neutrality”). And even if the two clauses are similar in that they often implicate governments’ fiscal decisions, see id., at 13–14, a finding that the Commerce Clause satisfies the Flast test would leave no principled way of distinguishing those other constitutional provisions that we have recognized constrain governments’ taxing and spending decisions. See, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987) (invalidating state sales tax under the Free Press Clause). Yet such a broad application of Flast’s exception to the general prohibition on taxpayer standing would be quite at odds with its narrow application in our precedent and Flast’s own promise that it would not transform federal courts into forums for taxpayers’ “generalized grievances.” 392 U. S., at 106. Flast is consistent with the principle, underlying the Article III prohibition on taxpayer suits, that a litigant may not assume a particular disposition of government funds in establishing standing. The Flast Court discerned in the history of the Establishment Clause “the specific evils feared by [its drafters] that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Id., at 103. The Court therefore understood the “injury” alleged in Establishment Clause challenges to federal spending to be the very “extract[ion] and spen[ding]” of “tax money” in aid of religion alleged by a plaintiff. Id., at 106. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally. See Valley Forge, 454 U. S., at 514 (Stevens, J., dissenting) (“[T]he plaintiffs’ invocation of the Establishment Clause was of decisive importance in resolving the standing issue in [Flast]”). Plaintiffs thus do not have state taxpayer standing on the ground that their Commerce Clause challenge is just like the Establishment Clause challenge in Flast. III Plaintiffs also claim that their status as municipal taxpayers gives them standing to challenge the state franchise tax credit at issue here. The Frothingham Court noted with approval the standing of municipal residents to enjoin the “illegal use of the moneys of a municipal corporation,” relying on “the peculiar relation of the corporate taxpayer to the corporation” to distinguish such a case from the general bar on taxpayer suits. 262 U. S., at 486–487; see ASARCO, 490 U. S., at 613–614 (opinion of Kennedy, J.) (reiterating distinction). Plaintiffs here challenged the municipal property tax exemption as municipal taxpayers. That challenge was rejected by the Court of Appeals on the merits, and no issue regarding plaintiffs’ standing to bring it has been raised. In plaintiffs’ challenge to the state franchise tax credit, however, they identify no municipal action contributing to any claimed injury. Instead, they try to leverage the notion of municipal taxpayer standing beyond challenges to municipal action, in two ways. A First, plaintiffs claim that because state law requires revenues from the franchise tax to be distributed to local governments, Ohio Rev. Code Ann. §5733.12 (Lexis 2005), the award of a credit to DaimlerChrysler reduced such distributions and thus depleted the funds of “local governments to which Respondents pay taxes.” Brief for Respondents 16. But plaintiffs’ challenge is still to the state law and state decision, not those of their municipality. We have already explained why a state taxpayer lacks standing to challenge a state fiscal decision on the grounds that it might affect his tax liability. All plaintiffs have done in recasting their claims as ones brought by municipal taxpayers whose municipalities receive funding from the State—the level of which might be affected by the same state fiscal decision—is introduce yet another level of conjecture to their already hypothetical claim of injury. And in fact events have highlighted the peril of assuming that any revenue increase resulting from a taxpayer suit will be put to a particular use. Ohio’s General Assembly suspended the statutory budget mechanism that distributes franchise tax revenues to local governments in 2001 and again in its subsequent biennial budgets. See Amended Substitute H. B. 94, 124th General Assembly §140 (2001), available at http://www.legislature.state. oh.us/BillText124/124_HB_94_ENR.pdf (all Internet ma- terials as visited May 12, 2006, and available in Clerk of Court’s case file); Amended Substitute H. B. 95, 125th General Assembly §139 (2003), available at http:// www.legislature.state.oh.us/BillText125/125_HB_95_EN2_N.pdf; Amended Substitute H. B. 66, 126th Gen- eral Assembly §557.12 (2005), available at http://www. legislature.state.oh.us/BillText126/126_HB_66_EN2d.pdf. Any effect that enjoining DaimlerChrysler’s credit will have on municipal funds, therefore, will not result from automatic operation of a statutory formula, but from a hypothesis that the state government will choose to direct the supposed revenue from the restored franchise tax to municipalities. This is precisely the sort of conjecture we may not entertain in assessing standing. See ASARCO, supra, at 614 (opinion of Kennedy, J.). B The second way plaintiffs seek to leverage their standing to challenge the municipal property tax exemption into a challenge to the franchise tax credit is by relying on Mine Workers v. Gibbs, 383 U. S. 715 (1966). According to plaintiffs, the “supplemental jurisdiction” recognized in that case supports jurisdiction over all their claims, once the District Court determined they had standing to challenge the property tax exemption. Brief for Respondents 17–18. Gibbs held that federal-question jurisdiction over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be viewed as part of the same case because they “derive from a common nucleus of operative fact” as the federal claim. 383 U. S., at 725. Plaintiffs assume that Gibbs stands for the proposition that federal jurisdiction extends to all claims sufficiently related to a claim within Article III to be part of the same case, regardless of the nature of the deficiency that would keep the former claims out of federal court if presented on their own. Our general approach to the application of Gibbs, however, has been markedly more cautious. For example, as a matter of statutory construction of the pertinent jurisidictional provisions, we refused to extend Gibbs to allow claims to be asserted against nondiverse parties when jurisdiction was based on diversity, see Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978), and we refused to extend Gibbs to authorize supplemental jurisdiction over claims that do not satisfy statutory amount-in-controversy requirements, see Finley v. United States, 490 U. S. 545 (1989). As the Court explained just last Term, “[w]e have not … applied Gibbs’ expansive interpretive approach to other aspects of the jurisdictional statutes.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. ___, ___ (2005) (slip op., at 5) (applying 28 U. S. C. §1367, enacted in 1990, to allow a federal court in a diversity action to exercise supplemental jurisdiction over additional diverse plaintiffs whose claims failed to meet the amount-in-controversy threshold). What we have never done is apply the rationale of Gibbs to permit a federal court to exercise supplemental jurisdiction over a claim that does not itself satisfy those elements of the Article III inquiry, such as constitutional standing, that “serv[e] to identify those disputes which are appropriately resolved through the judicial process.” Whitmore, 495 U. S., at 155. We see no reason to read the language of Gibbs so broadly, particularly since our standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press. See Allen, 468 U. S., at 752 (“[T]he standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted” (emphasis added)). We have insisted, for instance, that “a plaintiff must demonstrate standing separately for each form of relief sought.” Laidlaw, 528 U. S., at 185; see Los Angeles v. Lyons, 461 U. S. 95, 109 (1983). But if standing were commutative, as plaintiffs claim, this insistence would make little sense when all claims for relief derive from a “common nucleus of operative fact,” as they certainly appear to have in both Laidlaw, supra, at 175–179, and Lyons, supra, at 97–98. Plaintiffs’ reading of Gibbs to allow standing as to one claim to suffice for all claims arising from the same “nucleus of operative fact” would have remarkable implications. The doctrines of mootness, ripeness, and political question all originate in Article III’s “case” or “controversy” language, no less than standing does. See, e.g., National Park Hospitality Assn. v. Department of Interior, 538 U. S. 803, 808 (2003) (ripeness); Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997) (mootness); Reservists Comm. to Stop the War, 418 U. S., at 215 (political question). Yet if Gibbs’ “common nucleus” formulation announced a new definition of “case” or “controversy” for all Article III purposes, a federal court would be free to entertain moot or unripe claims, or claims presenting a political question, if they “derived from” the same “operative fact[s]” as another federal claim suffering from none of these defects. Plaintiffs’ reading of Gibbs, therefore, would amount to a significant revision of our precedent interpreting Article III. With federal courts thus deciding issues they would not otherwise be authorized to decide, the “ ‘tripartite allocation of power’ ” that Article III is designed to maintain, Valley Forge, 454 U. S., at 474, would quickly erode; our emphasis on the standing requirement’s role in maintaining this separation would be rendered hollow rhetoric. As we have explained, “[t]he actual-injury requirement would hardly serve the purpose … of preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.” Lewis v. Casey, 518 U. S. 343, 357 (1996). Lewis emphasized that “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Ibid. Plaintiffs’ theory of ancillary standing would contravene this principle. Plaintiffs failed to establish Article III injury with respect to their state taxes, and even if they did do so with respect to their municipal taxes, that injury does not entitle them to seek a remedy as to the state taxes. As the Court summed up the point in Lewis, “standing is not dispensed in gross.” Id., at 358, n. 6.[Footnote 5] * * * All the theories plaintiffs have offered to support their standing to challenge the franchise tax credit are unavailing. Because plaintiffs have no standing to challenge that credit, the lower courts erred by considering their claims against it on the merits. The judgment of the Sixth Circuit is therefore vacated in part, and the cases are remanded for dismissal of plaintiffs’ challenge to the franchise tax credit. It is so ordered. Footnote 1 Ohio has begun phasing out the franchise tax and has discontinued offering new credits against the tax like the one DaimlerChrysler received. See §§5733.01(G), 5733.33(B)(1) (Lexis 2005). Where relevant, therefore, the citations in this opinion are to the statutes in effect at the time DaimlerChrysler made its investment. Footnote 2 Other plaintiffs were residents of Toledo who claimed they were injured because they were displaced by the DaimlerChrysler expansion and Michigan residents who claimed injury because DaimlerChrysler would have expanded its operations in Michigan but for the Ohio investment tax credit. Plaintiffs neither identified these allegations as a basis for standing in their merits brief before this Court nor referred to them at oral argument. Any argument based on these allegations is therefore abandoned. See, e.g., United States v. International Business Machines Corp., 517 U. S. 843, 855, and n. 3 (1996). Footnote 3 Because defendants removed the case from state court to District Court, plaintiffs were not initially the parties that invoked federal jurisdiction. Indeed, plaintiffs initially expressed doubts as to their standing. Nonetheless, because “[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record,” Renne v. Geary, 501 U. S. 312, 316 (1991) (internal quotation marks omitted), the party asserting federal jurisdiction when it is challenged has the burden of establishing it. Whatever the parties’ previous positions on the propriety of a federal forum, plaintiffs, as the parties seeking to establish federal jurisdiction, must make the showings required for standing. Footnote 4 The majority of the Courts of Appeals to have considered the issue have reached a similar conclusion. See, e.g., Booth v. Hvass, 302 F. 3d 849 (CA8 2002); Board of Ed. of Mt. Sinai Union Free School Dist. v. New York State Teachers Retirement System, 60 F. 3d 106 (CA2 1995); Colorado Taxpayers Union, Inc. v. Romer, 963 F. 2d 1394 (CA10 1992); Taub v. Kentucky, 842 F. 2d 912 (CA6 1988); Korioth v. Briscoe, 523 F. 2d 1271 (CA5 1974); but cf. Arakaki v. Lingle, 423 F. 3d 954, 967–969 (CA9 2005) (finding state taxpayer standing in light of Hoohuli v. Ariyoshi, 741 F. 2d 1169 (CA9 1984), but noting that Justice Kennedy’s opinion in ASARCO Inc. v. Kadish, 490 U. S. 605 (1989), would “carry persuasive value” absent Hoohuli). Footnote 5 In defending the contrary position, plaintiffs rely on three cases from the Courts of Appeals. But two of those cases hold only that, once a litigant has standing to request invalidation of a particular agency action, it may do so by identifying all grounds on which the agency may have “ ‘failed to comply with its statutory mandate.’ ” Sierra Club v. Adams, 578 F. 2d 389, 392 (CADC 1978) (quoting Sierra Club v. Morton, 405 U. S. 727, 737 (1972)); see also Iowa Independent Bankers v. Board of Governors of Fed. Reserve, 511 F. 2d 1288, 1293–1294 (CADC 1975). They do not establish that the litigant can, by virtue of his standing to challenge one government action, challenge other governmental actions that did not injure him. In the third case, the Court of Appeals relied substantially on the fact that “all courts possess an inherent power to prevent unprofessional conduct by those attorneys who are practicing before them” in allowing the Government to contest the division of a damages award it was ordered to pay between a plaintiff and his attorney. Jackson v. United States, 881 F. 2d 707, 710–711 (CA9 1989). That situation is rather far afield from the question before us.
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547.US.813
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In No. 05–5224, a 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis’s trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis’s objection, which he based on the Sixth Amendment’s Confrontation Clause. He was convicted. The Washington Court of Appeals affirmed, as did the State Supreme Court, which concluded that, inter alia, the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial. In No. 05–5705, when police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel’s bench trial for, inter alia, domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel’s objection that he had no opportunity to cross-examine her. Hershel was convicted, and the Indiana Court of Appeals affirmed in relevant part. The State Supreme Court also affirmed, concluding that, although Amy’s affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt. Held: 1. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U. S. 36, 53–54. These cases require the Court to determine which police “interrogations” produce statements that fall within this prohibition. Without attempting to produce an exhaustive classification of all conceivable statements as either testimonial or nontestimonial, it suffices to decide the present cases to hold that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Pp. 6–7. 2. McCottry’s statements identifying Davis as her assailant were not testimonial. Pp. 8–14. (a) This case requires the Court to decide whether the Confrontation Clause applies only to testimonial hearsay, and, if so, whether the 911 recording qualifies. Crawford suggested the answer to the first question, noting that “the Confrontation Clause … applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Only “testimonial statements” cause a declarant to be a witness. The Court is unaware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not involve testimony as thus defined. Well into the 20th century, this Court’s jurisprudence was carefully applied only in the testimonial context, and its later cases never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases involving testimonial hearsay. Pp. 8–11. (b) The question in Davis, therefore, is whether, objectively considered, the interrogation during the 911 call produced testimonial statements. In contrast to Crawford, where the interrogation took place at a police station and was directed solely at establishing a past crime, a 911 call is ordinarily designed primarily to describe current circumstances requiring police assistance. The difference is apparent here. McCottry was speaking of events as they were actually happening, while Crawford’s interrogation took place hours after the events occurred. Moreover, McCottry was facing an ongoing emergency. Further, the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the difference in the level of formality is striking. Crawford calmly answered questions at a station house, with an officer-interrogator taping and taking notes, while McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even safe. Thus, the circumstances of her interrogation objectively indicate that its primary purpose was to enable police assistance to meet an ongoing emergency. She was not acting as a witness or testifying. Pp. 11–14. 3. Amy Hammon’s statements were testimonial. They were not much different from those in Crawford. It is clear from the circumstances that Amy’s interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress, she told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened. Objectively viewed, the primary, if not sole, purpose of the investigation was to investigate a possible crime. While the formal features of Crawford’s interrogation strengthened her statements’ testimonial aspect, such features were not essential to the point. In both cases, the declarants were separated from the defendants, the statements recounted how potentially criminal past events began and progressed, and the interrogation took place some time after the events were over. For the same reasons the comparison to Crawford is compelling, the comparison to Davis is unpersuasive. The statements in Davis were taken when McCottry was alone, unprotected by police, and apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. Pp. 14–17. 4. The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing—under which one who obtains a witness’s absence by wrongdoing forfeits the constitutional right to confrontation—is properly raised in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon’s affidavit. Pp. 18–19. No. 05–5224, 154 Wash. 2d 291, 111 P. 3d 844, affirmed; No. 05–5705, 829 N. E. 2d 444, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part. Together with No. 05–5705, Hammon v. Indiana, on certiorari to the Supreme Court of Indiana.
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These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are “testimonial” and thus subject to the requirements of the Sixth Amendment’s Confrontation Clause. I A The relevant statements in Davis v. Washington, No. 05–5224, were made to a 911 emergency operator on February 1, 2001. When the operator answered the initial call, the connection terminated before anyone spoke. She reversed the call, and Michelle McCottry answered. In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this case: “911 Operator: Hello. “Complainant: Hello. “911 Operator: What’s going on? “Complainant: He’s here jumpin’ on me again. “911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment? “Complainant: I’m in a house. “911 Operator: Are there any weapons? “Complainant: No. He’s usin’ his fists. “911 Operator: Okay. Has he been drinking? “Complainant: No. “911 Operator: Okay, sweetie. I’ve got help started. Stay on the line with me, okay? “Complainant: I’m on the line. “911 Operator: Listen to me carefully. Do you know his last name? “Complainant: It’s Davis. “911 Operator: Davis? Okay, what’s his first name? “Complainant: Adran “911 Operator: What is it? “Complainant: Adrian. “911 Operator: Adrian? “Complainant: Yeah. “911 Operator: Okay. What’s his middle initial? “Complainant: Martell. He’s runnin’ now.” App. in No. 05–5224, pp. 8–9. As the conversation continued, the operator learned that Davis had “just r[un] out the door” after hitting McCottry, and that he was leaving in a car with someone else. Id., at 9–10. McCottry started talking, but the operator cut her off, saying, “Stop talking and answer my questions.” Id., at 10. She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was “to get his stuff,” since McCottry was moving. Id., at 11–12. McCottry described the context of the assault, id., at 12, after which the operator told her that the police were on their way. “They’re gonna check the area for him first,” the operator said, “and then they’re gonna come talk to you.” Id., at 12–13. The police arrived within four minutes of the 911 call and observed McCottry’s shaken state, the “fresh injuries on her forearm and her face,” and her “frantic efforts to gather her belongings and her children so that they could leave the residence.” 154 Wash. 2d 291, 296, 111 P. 3d 844, 847 (2005) (en banc). The State charged Davis with felony violation of a domestic no-contact order. “The State’s only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries.” Ibid. McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear. Over Davis’s objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him. The Washington Court of Appeals affirmed, 116 Wash. App. 81, 64 P. 3d 661 (2003). The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation in which McCottry identified Davis was not testimonial, and that if other portions of the conversation were testimonial, admitting them was harmless beyond a reasonable doubt. 154 Wash. 2d, at 305, 111 P. 3d, at 851. We granted certiorari. 546 U. S. ___ (2005). B In Hammon v. Indiana, No. 05–5705, police responded late on the night of February 26, 2003, to a “reported domestic disturbance” at the home of Hershel and Amy Hammon. 829 N. E. 2d 444, 446 (Ind. 2005). They found Amy alone on the front porch, appearing “ ‘somewhat frightened,’ ” but she told them that “ ‘nothing was the matter,’ ” id., at 446, 447. She gave them permission to enter the house, where an officer saw “a gas heating unit in the corner of the living room” that had “flames coming out of the … partial glass front. There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit.” App. in No. 05–5705, p. 16. Hershel, meanwhile, was in the kitchen. He told the police “that he and his wife had ‘been in an argument’ but ‘everything was fine now’ and the argument ‘never became physical.’ ” 829 N. E. 2d, at 447. By this point Amy had come back inside. One of the officers remained with Hershel; the other went to the living room to talk with Amy, and “again asked [her] what had occurred.” Ibid.; App. in No. 05–5705, at 17, 32. Hershel made several attempts to participate in Amy’s conversation with the police, see id., at 32, but was rebuffed. The officer later testified that Hershel “became angry when I insisted that [he] stay separated from Mrs. Hammon so that we can investigate what had happened.” Id., at 34. After hearing Amy’s account, the officer “had her fill out and sign a battery affidavit.” Id., at 18. Amy handwrote the following: “Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id., at 2. The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at his subsequent bench trial. The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit. Hershel’s counsel repeatedly objected to the admission of this evidence. See id., at 11, 12, 13, 17, 19, 20, 21. At one point, after hearing the prosecutor defend the affidavit because it was made “under oath,” defense counsel said, “That doesn’t give us the opportunity to cross examine [the] person who allegedly drafted it. Makes me mad.” Id., at 19. Nonetheless, the trial court admitted the affidavit as a “present sense impression,” id., at 20, and Amy’s statements as “excited utterances” that “are expressly permitted in these kinds of cases even if the declarant is not available to testify.” Id., at 40. The officer thus testified that Amy “informed me that she and Hershel had been in an argument. That he became irrate [sic] over the fact of their daughter going to a boyfriend’s house. The argument became … physical after being verbal and she informed me that Mr. Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater. . . . . . “She informed me Mr. Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe.” Id., at 17–18. The trial judge found Hershel guilty on both charges, id., at 40, and the Indiana Court of Appeals affirmed in relevant part, 809 N. E. 2d 945 (2004). The Indiana Supreme Court also affirmed, concluding that Amy’s statement was admissible for state-law purposes as an excited utterance, 829 N. E. 2d, at 449; that “a ‘testimonial’ statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings,” where “the motivations of the questioner and declarant are the central concerns,” id., at 456, 457; and that Amy’s oral statement was not “testimonial” under these standards, id., at 458. It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench. Id., at 458–459. We granted certiorari. 546 U. S. ___ (2005). II The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 53–54 (2004), we held that this provision bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase “testimonial statements.” Only statements of this sort cause the declarant to be a “witness” within the meaning of the Confrontation Clause. See id., at 51. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Our opinion in Crawford set forth “[v]arious formulations” of the core class of “ ‘testimonial’ ” statements, ibid., but found it unnecessary to endorse any of them, because “some statements qualify under any definition,” id., at 52. Among those, we said, were “[s]tatements taken by police officers in the course of interrogations,” ibid.; see also id., at 53. The questioning that generated the deponent’s statement in Crawford—which was made and recorded while she was in police custody, after having been given Miranda warnings as a possible suspect herself—“qualifies under any conceivable definition” of an “ ‘interrogation,’ ” 541 U. S., at 53, n. 4. We therefore did not define that term, except to say that “[w]e use [it] . . . in its colloquial, rather than any technical legal, sense,” and that “one can imagine various definitions . . . , and we need not select among them in this case.” Ibid. The character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony. Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.[Footnote 1] III A In Crawford, it sufficed for resolution of the case before us to determine that “even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.” Id., at 53. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by “interrogations.” The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call[Footnote 2] are an interrogation in one sense, but not in a sense that “qualifies under any conceivable definition.” We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies. The answer to the first question was suggested in Crawford, even if not explicitly held: “The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ 1 N. Webster, An American Dictionary of the English Language (1828). ‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” 541 U. S., at 51. A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its “core,” but its perimeter. We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined.[Footnote 3] Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context. See, e.g., Reynolds v. United States, 98 U. S. 145, 158 (1879) (testimony at prior trial was subject to the Confrontation Clause, but petitioner had forfeited that right by procuring witness’s absence); Mattox v. United States, 156 U. S. 237, 240–244 (1895) (prior trial testimony of deceased witnesses admitted because subject to cross-examination); Kirby v. United States, 174 U. S. 47, 55–56 (1899) (guilty pleas and jury conviction of others could not be admitted to show that property defendant received from them was stolen); Motes v. United States, 178 U. S. 458, 467, 470–471 (1900) (written deposition subject to cross-examination was not admissible because witness was available); Dowdell v. United States, 221 U. S. 325, 330–331 (1911) (facts regarding conduct of prior trial certified to by the judge, the clerk of court, and the official reporter did not relate to defendants’ guilt or innocence and hence were not statements of “witnesses” under the Confrontation Clause). Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U. S. 56 (1980),[Footnote 4] never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford, 541 U. S., at 57–59 (citing cases), with one arguable exception, see id., at 58, n. 8 (discussing White v. Illinois, 502 U. S. 346 (1992)). Where our cases did dispense with those requirements—even under the Roberts approach—the statements at issue were clearly nontestimonial. See, e.g., Bourjaily v. United States, 483 U. S. 171, 181–184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U. S. 74, 87–89 (1970) (plurality opinion) (statements from one prisoner to another). Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counterparts involved testimonial statements of the most formal sort—sworn testimony in prior judicial proceedings or formal depositions under oath—which invites the argument that the scope of the Clause is limited to that very formal category. But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions, see Crawford, supra, at 52, and n. 3. In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it. The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, supra, at 53, that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., at 51. (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e.g., United States v. Stewart, 433 F. 3d 273, 288 (CA2 2006) (false statements made to federal investigators violate 18 U. S. C. §1001); State v. Reed, 2005 WI 53, ¶30, 695 N. W. 2d 315, 323 (state criminal offense to “knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty”).) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to “establis[h] or prov[e]” some past fact, but to describe current circumstances requiring police assistance. The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than “describ[ing] past events,” Lilly v. Virginia, 527 U. S. 116, 137 (1999) (plurality opinion). Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry’s call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186 (2004). And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. We conclude from all this that the circumstances of McCottry’s interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not “a weaker substitute for live testimony” at trial, United States v. Inadi, 475 U. S. 387, 394 (1986), like Lord Cobham’s statements in Raleigh’s Case, 2 How. St. Tr. 1 (1603), or Jane Dingler’s ex parte statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or Sylvia Crawford’s statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry’s emergency statement does not. No “witness” goes into court to proclaim an emergency and seek help. Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases. None of them involves statements made during an ongoing emergency. In King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), for example, a young rape victim, “immediately on her coming home, told all the circumstances of the injury” to her mother. Id., at 200, 168 Eng. Rep., at 202. The case would be helpful to Davis if the relevant statement had been the girl’s screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events. This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, “evolve into testimonial statements,” 829 N. E. 2d, at 457, once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry’s statements were testimonial, not unlike the “structured police questioning” that occurred in Crawford, 541 U. S., at 53, n. 4. This presents no great problem. Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U. S. 649, 658–659 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. Davis’s jury did not hear the complete 911 call, although it may well have heard some testimonial portions. We were asked to classify only McCottry’s early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial. That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable doubt. Davis does not challenge that holding, and we therefore assume it to be correct. B Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct—as, indeed, the testifying officer expressly acknowledged, App. in No. 05–5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the officers first arrived, Amy told them that things were fine, id., at 14, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) “what is happening,” but rather “what happened.” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime—which is, of course, precisely what the officer should have done. It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U. S., at 53, n. 4. While these features certainly strengthened the statements’ testimonial aspect—made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events—none was essential to the point. It was formal enough that Amy’s interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his “investigat[ion].” App. in No. 05–5705, at 34. What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations, 541 U. S., at 52, is shared by Amy’s statement here. Both declarants were actively separated from the defendant—officers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a wit- ness does on direct examination; they are inherently testimonial.[Footnote 5] Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis. For the reasons we find the comparison to Crawford compelling, we find the comparison to Davis unpersuasive. The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer’s questions, he had her execute an affidavit, in order, he testified, “[t]o establish events that have occurred previously.” App. in No. 05–5705, at 18. Although we necessarily reject the Indiana Supreme Court’s implication that virtually any “initial inquiries” at the crime scene will not be testimonial, see 829 N. E. 2d, at 453, 457, we do not hold the opposite—that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that “[o]fficers called to investigate … need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, 542 U. S., at 186. Such exigencies may often mean that “initial inquiries” produce nontestimonial statements. But in cases like this one, where Amy’s statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were “initial inquiries” is immaterial. Cf. Crawford, supra, at 52, n. 3.[Footnote 6] IV Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two cases—domestic violence—requires greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. Cf. Kyllo v. United States, 533 U. S. 27 (2001) (suppressing evidence from an illegal search). But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that “the rule of forfeiture by wrongdoing … extinguishes confrontation claims on essentially equitable grounds.” 541 U. S., at 62 (citing Reynolds, 98 U. S., at 158–159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e.g., United States v. Scott, 284 F. 3d 758, 762 (CA7 2002). State courts tend to follow the same practice, see, e.g., Commonwealth v. Edwards, 444 Mass. 526, 542, 830 N. E. 2d 158, 172 (2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that “hearsay evidence, including the unavailable witness’s out-of-court statements, may be considered.” Id., at 545, 830 N. E. 2d, at 174. The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the “reliability” of ex parte statements more easily than they could show the defendant’s procurement of the witness’s absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings. We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon’s affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious. * * * We affirm the judgment of the Supreme Court of Washington in No. 05–5224. We reverse the judgment of the Supreme Court of Indiana in No. 05–5705, and remand the case to that Court for proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate. Footnote 2 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in Crawford v. Washington, 541 U. S. 36 (2004), therefore, our hold- ing today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are “testimonial.” Footnote 3 See, e.g., State v. Webb, 2 N. C. 103, 103–104 (Super. L. & Eq. 1794) (per curiam) (excluding deposition taken in absence of the accused); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam) (excluding prior testimony of deceased witness); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821) (admitting written deposition of deceased deponent, because defendant had the opportunity to cross-examine); Finn v. Commonwealth, 26 Va. 701, 707–708 (1827) (excluding prior testimony of a witness still alive, though outside the jurisdiction); State v. Hill, 20 S. C. L. 607 (App. 1835) (excluding deposition of deceased victim taken in absence of the accused); Commonwealth v. Richards, 35 Mass. 434, 436–439 (1837) (excluding preliminary examination testimony of deceased witness because the witness’s precise words were not available); Bostick v. State, 22 Tenn. 344 (1842) (admitting deposition of deceased where defendant declined opportunity to cross-examine); People v. Newman, 5 Hill 295 (N. Y. Sup. Ct. 1843) (per curiam) (excluding prior trial testimony of witness who was still alive); State v. Campbell, 30 S. C. L. 124, 125 (App. L. 1844) (excluding deposition taken in absence of the accused); State v. Valentine, 29 N. C. 225 (1847) (per curiam) (admitting preliminary examination testimony of decedent where defendant had opportunity to cross-examine); Kendrick v. State, 29 Tenn. 479, 491 (1850) (admitting testimony of deceased witness at defendant’s prior trial); State v. Houser, 26 Mo. 431, 439–441 (1858) (excluding deposition of deponent who was still alive). Footnote 4 “Roberts condition[ed] the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ ” Crawford, 541 U. S., at 60 (quoting Roberts, 448 U. S., at 66). We overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements. Footnote 5 The dissent criticizes our test for being “neither workable nor a targeted attempt to reach the abuses forbidden by the [Confrontation] Clause,” post, at 9 (opinion of Thomas, J.). As to the former: We have acknowledged that our holding is not an “exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation,” supra, at 7, but rather a resolution of the cases before us and those like them. For those cases, the test is objective and quite “workable.” The dissent, in attempting to formulate an exhaustive classification of its own, has not provided anything that deserves the description “workable”—unless one thinks that the distinction between “formal” and “informal” statements, see post, at 4–5, qualifies. And the dissent even qualifies that vague distinction by acknowledging that the Confrontation Clause “also reaches the use of technically informal statements when used to evade the formalized process,” post, at 5, and cautioning that the Clause would stop the State from “us[ing] out-of-court statements as a means of circumventing the literal right of confrontation,” post, at 6. It is hard to see this as much more “predictable,” ibid., than the rule we adopt for the narrow situations we address. (Indeed, under the dissent’s approach it is eminently arguable that the dissent should agree, rather than disagree, with our disposition in Hammon v. Indiana, No. 05–5705.) As for the charge that our holding is not a “targeted attempt to reach the abuses forbidden by the [Confrontation] Clause,” which the dissent describes as the depositions taken by Marian magistrates, characterized by a high degree of formality, see post, at 2–3: We do not dispute that formality is indeed essential to testimonial utterance. But we no longer have examining Marian magistrates; and we do have, as our 18th-century forebears did not, examining police officers, see L. Friedman, Crime and Punishment in American History 67–68 (1993)—who perform investigative and testimonial functions once performed by examining Marian magistrates, see J. Langbein, The Origins of Adversary Criminal Trial 41 (2003). It imports sufficient formality, in our view, that lies to such officers are criminal offenses. Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction. Cf. Kyllo v. United States, 533 U. S. 27 (2001). Footnote 6 Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. Investigations of past crimes prevent future harms and lead to necessary arrests. While prosecutors may hope that inculpatory “nontestimonial” evidence is gathered, this is essentially beyond police control. Their saying that an emergency exists cannot make it be so. The Confrontation Clause in no way governs police conduct, because it is the trial use of, not the investigatory collection of, ex parte testimonial statements which offends that provision. But neither can police conduct govern the Confrontation Clause; testimonial statements are what they are.
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547.US.198
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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sets a one-year limitation period for filing a state prisoner’s federal habeas corpus petition, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” 28 U. S. C. §2244(d)(1)(A), but stops the one-year clock while the petitioner’s “properly filed” application for state postconviction relief “is pending,” §2244(d)(2). Under Eleventh Circuit precedent, which is not challenged here, that tolling period does not include the 90 days in which a petitioner might have sought certiorari review in this Court challenging state-court denial of postconviction relief. Petitioner Day’s Florida trial-court sentence was affirmed on December 21, 1999, and his time to seek this Court’s review of the final state-court decision expired on March 20, 2000. Day unsuccessfully sought state postconviction relief 353 days later. The trial court’s judgment was affirmed on appeal, effective December 3, 2002. Day petitioned for federal habeas relief 36 days later, on January 8, 2003. Florida’s answer asserted that the petition was “timely” because it was filed after 352 days of untolled time. Inspecting the answer and attachments, however, a Federal Magistrate Judge determined that the State had miscalculated the tolling time: Under the controlling Eleventh Circuit precedent, the untolled time was actually 388 days, rendering the petition untimely. After affording Day an opportunity to show cause why the petition should not be dismissed for failure to meet AEDPA’s one-year deadline, the Magistrate Judge found petitioner’s responses inadequate and recommended dismissal. The District Court adopted the recommendation, and the Eleventh Circuit affirmed, concluding that a State’s patently erroneous concession of timeliness does not compromise a district court’s authority sU. S.onte to dismiss a habeas petition as untimely. Held: In the circumstances here presented, the District Court had discretion to correct the State’s erroneous computation and, accordingly, to dismiss the habeas petition as untimely under AEDPA’s one-year limitation. Pp. 2–11. (a) A statute of limitations defense is not jurisdictional, therefore courts are under no obligation to raise the matter sU. S.onte. Cf. Kontrick v. Ryan, 540 U. S. 443, 458. As a general matter, a defendant forfeits a statute of limitations defense not asserted in its answer or in an amendment thereto. See Federal Rules of Civil Procedure 8(c), 12(b), and 15(a) (made applicable to federal habeas proceedings by Rule 11 of the Rules governing such proceedings). And the Court would count it an abuse of discretion to override a State’s deliberate waiver of the limitations defense. But, in appropriate circumstances, a district court may raise a time bar on its own initiative. The District Court in this case confronted no intelligent waiver on the State’s part, only an evident miscalculation of time. In this situation the Court declines to adopt either an inflexible rule requiring dismissal whenever AEDPA’s one-year clock has run, or, at the opposite extreme, a rule treating the State’s failure initially to plead the one-year bar as an absolute waiver. Rather, the Court holds that a district court has discretion to decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition. This resolution aligns the statute of limitations with other affirmative defenses to habeas petitions, notably exhaustion of state remedies, procedural default, and nonretroactivity. In Granberry v. Greer, 481 U. S. 129, 133, this Court held that federal appellate courts have discretion to consider a state prisoner’s failure to exhaust available state remedies before invoking federal habeas jurisdiction despite the State’s failure to interpose the exhaustion defense at the district-court level. Similarly, in Caspari v. Bohlen, 510 U. S. 383, 389, the Court held that “a federal court may, but need not, decline to apply [the nonretroactivity rule announced in Teague v. Lane, 489 U. S. 288, 310,] if the State does not argue it.” It would make scant sense to distinguish AEDPA’s time bar from these other threshold constraints on federal habeas petitioners. While a district court is not required to double-check the State’s math, cf. Pliler v. Ford, 542 U. S. 225, 231, no Rule, statute, or constitutional provision commands a judge who detects a clear computation error to suppress that knowledge. Cf. Fed. Rule Civ. Proc. 60(a). The Court notes particularly that the Magistrate Judge, instead of acting sU. S.onte, might have informed the State of its obvious computation error and entertained an amendment to the State’s answer. See, e.g., Fed. Rule Civ. Proc. 15(a). There is no dispositive difference between that route, and the one taken here. Pp. 2–10. (b) Before acting sU. S.onte, a court must accord the parties fair notice and an opportunity to present their positions. It must also assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and “determine whether the interests of justice would be better served” by addressing the merits or by dismissing the petition as time barred. See Granberry, 481 U. S., at 136. Here, the Magistrate Judge gave Day due notice and a fair opportunity to show why the limitation period should not yield dismissal. The notice issued some nine months after the State’s answer. No court proceedings or action occurred in the interim, and nothing suggests that the State “strategically” withheld the defense or chose to relinquish it. From all that appears in the record, there was merely an inadvertent error, a miscalculation that was plain under Circuit precedent, and no abuse of discretion in following Granberry and Caspari. P. 11. 391 F. 3d 1192, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., filed an opinion dissenting from the judgment, in which Breyer, J., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Breyer, JJ., joined.
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This case concerns the authority of a U. S. District Court, on its own initiative, to dismiss as untimely a state prisoner’s petition for a writ of habeas corpus. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, sets a one-year limitation period for filing such petitions, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U. S. C. §2244(d)(1)(A). The one-year clock is stopped, however, during the time the petitioner’s “properly filed” application for state postconviction relief “is pending.” §2244(d)(2). Under Eleventh Circuit precedent, that tolling period does not include the 90 days in which a petitioner might have sought certiorari review in this Court challenging state-court denial of postconviction relief. Coates v. Byrd, 211 F. 3d 1225, 1227 (2000). In the case before us, the State’s answer to the federal habeas petition “agree[d] the petition [was] timely” because it was “filed after 352 days of untolled time.” App. 24. Inspecting the pleadings and attachments, a Federal Magistrate Judge determined that the State had miscalculated the tolling time. Under Circuit precedent, the untolled time was 388 days, rendering the petition untimely by some three weeks. After affording the petitioner an opportunity to show cause why the petition should not be dismissed for failure to meet the statutory deadline, and finding petitioner’s responses inadequate, the Magistrate Judge recommended dismissal of the petition. The District Court adopted the Magistrate Judge’s recommendation, and the Court of Appeals affirmed, concluding that “[a] concession of timeliness by the state that is patently erroneous does not compromise the authority of a district court sU. S.onte to dismiss a habeas petition as untimely, under AEDPA.” Day v. Crosby, 391 F. 3d 1192, 1195 (CA11 2004). The question presented is whether a federal court lacks authority, on its own initiative, to dismiss a habeas petition as untimely, once the State has answered the petition without contesting its timeliness. Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant’s answer or in an amendment thereto. Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a). And we would count it an abuse of discretion to override a State’s deliberate waiver of a limitations defense. In this case, however, the federal court confronted no intelligent waiver on the State’s part, only an evident miscalculation of the elapsed time under a statute designed to impose a tight time constraint on federal habeas petitioners.[Footnote 1] In the circumstances here presented, we hold, the federal court had discretion to correct the State’s error and, accordingly, to dismiss the petition as untimely under AEDPA’s one-year limitation. I Petitioner Patrick A. Day was convicted of second-degree murder and sentenced to 55 years in prison by a Florida trial court. Day unsuccessfully appealed the sentence, which was affirmed on December 21, 1999. Day did not seek this Court’s review of the final state-court decision; his time to do so expired on March 20, 2000. Three hundred and fifty-three (353) days later, Day unsuccessfully sought state postconviction relief. The Florida trial court’s judgment denying relief was affirmed on appeal, and the appellate court issued its mandate on December 3, 2002. See Nyland v. Moore, 216 F. 3d 1264, 1267 (CA11 2000) (under Florida law, appellate order “is pending” until the mandate issues). Thirty-six (36) days thereafter, on January 8, 2003, Day petitioned for federal habeas relief asserting several claims of ineffective assistance of trial counsel. A Magistrate Judge, finding the petition “in proper form,” App. 21, ordered the State to file an answer, id., at 21–22. In its responsive pleading, the State failed to raise AEDPA’s one-year limitation as a defense. See supra, at 2. Overlooking controlling Eleventh Circuit precedent, see Coates, 211 F. 3d, at 1227, the State calculated that the petition had been “filed after 352 days of untolled time,” and was therefore “timely.” App. 24. The State’s answer and attachments, however, revealed that, had the State followed the Eleventh Circuit’s instruction on computation of elapsed time, the timeliness concession would not have been made: Under the Circuit’s precedent, more than one year, specifically, 388 days of untolled time, had passed between the finality of Day’s state-court conviction and the filing of his federal habeas petition.[Footnote 2] A newly assigned Magistrate Judge noticed the State’s computation error and ordered Day to show cause why his federal habeas petition should not be dismissed as untimely. Id., at 26–30. Determining that Day’s responses did not overcome the time bar, the Magistrate Judge recommended dismissal of the petition, App. to Pet. for Cert. 8a–15a, and the District Court adopted that recommendation, id., at 7a. The Eleventh Circuit granted Day a certificate of appealability on the question “[w]hether the district court erred in addressing the timeliness of [Day’s] habeas corpus petition … after the [State] had conceded that [the] petition was timely.” App. 37. In a decision rendered two years earlier, Jackson v. Secretary for Dept. of Corrections, 292 F. 3d 1347 (2002), the Eleventh Circuit had ruled that, “even though the statute of limitations is an affirmative defense, the district court may review sU. S.onte the timeliness of [a federal habeas] petition.” Id., at 1349. Adhering to Jackson, and satisfied that the State’s concession of timeliness “was patently erroneous,” the Eleventh Circuit affirmed the dismissal of Day’s petition. 391 F. 3d, at 1192–1195.[Footnote 3] We granted certiorari sub nom. Day v. Crosby, 545 U. S. __ (2005), in view of the division among the Circuits on the question whether a district court may dismiss a federal habeas petition as untimely under AEDPA, despite the State’s failure to raise the one-year limitation in its answer to the petition or its erroneous concession of the timeliness issue. Compare, e.g., Long v. Wilson, 393 F. 3d 390, 401–404 (CA3 2004), and 391 F. 3d, at 1194–1195 (case below), with Scott v. Collins, 286 F. 3d 923, 930–931 (CA6 2002), and Nardi v. Stewart, 354 F. 3d 1134, 1141–1142 (CA9 2004). II A statute of limitations defense, the State acknowledges, is not “jurisdictional,” hence courts are under no obligation to raise the time bar sU. S.onte. See, e.g., Acosta v. Artuz, 221 F. 3d 117, 122 (CA2 2000); Hill v. Braxton, 277 F. 3d 701, 705 (CA4 2002); Davis v. Johnson, 158 F. 3d 806, 810 (CA5 1998); cf. Kontrick v. Ryan, 540 U. S. 443, 458 (2004) (defendant forfeited untimeliness argument “by failing to raise the issue until after [the] complaint was adjudicated on the merits”). In this respect, the limitations defense resembles other threshold barriers—exhaustion of state remedies, procedural default, nonretroactivity—courts have typed “nonjurisdictional,” although recognizing that those defenses “implicat[e] values beyond the concerns of the parties.” Acosta, 221 F. 3d, at 123 (“The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.”). On the exhaustion of state remedies doctrine, requiring state prisoners, before invoking federal habeas jurisdiction, to pursue remedies available in state court, Granberry v. Greer, 481 U. S. 129 (1987), is the pathmarking case. We held in Granberry that federal appellate courts have discretion to consider the issue of exhaustion despite the State’s failure to interpose the defense at the district-court level. Id., at 133.[Footnote 4] Later, in Caspari v. Bohlen, 510 U. S. 383, 389 (1994), we similarly held that “a federal court may, but need not, decline to apply [the nonretroactivity rule announced in Teague v. Lane, 489 U. S. 288, 310 (1989),] if the State does not argue it.” See also Schiro v. Farley, 510 U. S. 222, 229 (1994) (declining to address nonretroactivity defense that State raised only in Supreme Court merits brief, “[a]lthough we undoubtedly have the discretion to reach” the argument). While the issue remains open in this Court, see Trest v. Cain, 522 U. S. 87, 90 (1997),[Footnote 5] the Courts of Appeals have unanimously held that, in appropriate circumstances, courts, on their own initiative, may raise a petitioner’s procedural default, i.e., a petitioner’s failure properly to present an alleged constitutional error in state court, and the consequent adequacy and independence of state-law grounds for the state-court judgment. See Brewer v. Marshall, 119 F. 3d 993, 999 (CA1 1997); Rosario v. United States, 164 F. 3d 729, 732 (CA2 1998); Sweger v. Chesney, 294 F. 3d 506, 520 (CA3 2002); Yeatts v. Angelone, 166 F. 3d 255, 261 (CA4 1999); Magouirk v. Phillips, 144 F. 3d 348, 358 (CA5 1998); Sowell v. Bradshaw, 372 F. 3d 821, 830 (CA6 2004); Kurzawa v. Jordan, 146 F. 3d 435, 440 (CA7 1998); King v. Kemna, 266 F. 3d 816, 822 (CA8 2001) (en banc); Vang v. Nevada, 329 F. 3d 1069, 1073 (CA9 2003); United States v. Wiseman, 297 F. 3d 975, 979 (CA10 2002); Moon v. Head, 285 F. 3d 1301, 1315, n. 17 (CA11 2002). Petitioner Day relies heavily on Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules), i.e., the procedural Rules governing federal habeas petitions from state prisoners, in urging that AEDPA’s limitation may be raised by a federal court sU. S.onte only at the preanswer, initial screening stage. Habeas Rule 4 provides that district courts “must promptly examine” state prisoner habeas petitions and must dismiss the petition “[i]f it plainly appears … that the petitioner is not entitled to relief.” Once an answer has been ordered and filed, Day maintains, the court loses authority to rule the petition untimely sU. S.onte.[Footnote 6] At that point, according to Day, the Federal Rules of Civil Procedure hold sway. See Habeas Rule 11 (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”).[Footnote 7] Under the Civil Procedure Rules, a defendant forfeits a statute of limitations defense, see Fed. Rule Civ. Proc. 8(c), not asserted in its answer, see Rule 12(b), or an amendment thereto, see Rule 15(a). The State, on the other hand, points out that the statute of limitations is akin to other affirmative defenses to habeas petitions, notably exhaustion of state remedies, procedural default, and nonretroactivity. Indeed, the statute of limitations is explicitly aligned with those other defenses under the current version of Habeas Rule 5(b), which provides that the State’s answer to a habeas petition “must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.” The considerations of comity, finality, and the expeditious handling of habeas proceedings that motivated AEDPA,[Footnote 8] the State maintains, counsel against an excessively rigid or formal approach to the affirmative defenses now listed in Habeas Rule 5. Citing Granberry, 481 U. S., at 131–134, as the instructive case, the State urges express recognition of an “intermediate approach.” Brief for Respondent 14 (internal quotation marks omitted); see also id., at 25. In lieu of an inflexible rule requiring dismissal whenever AEDPA’s one-year clock has run, or, at the opposite extreme, a rule treating the State’s failure initially to plead the one-year bar as an absolute waiver, the State reads the statutes, Rules, and decisions in point to permit the “exercise [of] discretion in each case to decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition.” Id., at 14. Employing that “intermediate approach” in this particular case, the State argues, the petition should not be deemed timely simply because a government attorney calculated the days in between petitions incorrectly. We agree, noting particularly that the Magistrate Judge, instead of acting sU. S.onte, might have informed the State of its obvious computation error and entertained an amendment to the State’s answer. See Fed. Rule Civ. Proc. 15(a) (leave to amend “shall be freely given when justice so requires”); see also 28 U. S. C. §2243 (State’s response to habeas petition may be amended by leave of court); cf. Long, 393 F. 3d, at 402–404 (District Court raised the statute of limitations sU. S.onte, the State agreed with that disposition, and the Court of Appeals treated that agreement as a constructive amendment to the State’s answer). Recognizing that an amendment to the State’s answer might have obviated this controversy,[Footnote 9] we see no dispositive difference between that route, and the one taken here. See Brief for Respondent 24 (“Here, the State did not respond to the show cause order because its concession of timeliness was based on an erroneous calculation and it agreed the petition should be dismissed as untimely.”); cf. Slack v. McDaniel, 529 U. S. 473, 487 (2000) (admonishing against interpretation of procedural prescriptions in federal habeas cases to “trap the unwary pro se prisoner” (quoting Rose v. Lundy, 455 U. S. 509, 520 (1982))). In sum, we hold that district courts are permitted, but not obliged, to consider, sU. S.onte, the timeliness of a state prisoner’s habeas petition. We so hold, noting that it would make scant sense to distinguish in this regard AEDPA’s time bar from other threshold constraints on federal habeas petitioners. See supra, at 6–7; Habeas Rule 5(b) (placing “a statute of limitations” defense on a par with “failure to exhaust state remedies, a procedural bar, [and] non-retroactivity”); Long, 393 F. 3d, at 404 (“AEDPA’s statute of limitations advances the same concerns as those advanced by the doctrines of exhaustion and procedural default, and must be treated the same.”). We stress that a district court is not required to double-check the State’s math. If, as this Court has held, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants,” Pliler v. Ford, 542 U. S. 225, 231 (2004),[Footnote 10] then, by the same token, they surely have no obligation to assist attorneys representing the State. Nevertheless, if a judge does detect a clear computation error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge. Cf. Fed. Rule Civ. Proc. 60(a) (clerical errors in the record “arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party”). Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions. See, e.g., Acosta, 221 F. 3d, at 124–125; McMillan v. Jarvis, 332 F. 3d 244, 250 (CA4 2003). Further, the court must assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and “determine whether the interests of justice would be better served” by addressing the merits or by dismissing the petition as time barred. See Granberry, 481 U. S., at 136.[Footnote 11] Here, the Magistrate Judge gave Day due notice and a fair opportunity to show why the limitation period should not yield dismissal of the petition. The notice issued some nine months after the State answered the petition. No court proceedings or action occurred in the interim, and nothing in the record suggests that the State “strategically” withheld the defense or chose to relinquish it. From all that appears in the record, there was merely an inadvertent error, a miscalculation that was plain under Circuit precedent, and no abuse of discretion in following this Court’s lead in Granberry and Caspari, described supra, at 6–7. * * * For the reasons stated, the judgment of the Court of Appeals is Affirmed. Footnote 1 Until AEDPA took effect in 1996, no statute of limitations applied to habeas petitions. See Mayle v. Felix, 545 U. S. ___, ___ (2005) (slip op., at 7). Courts invoked the doctrine of “prejudicial delay” to screen out unreasonably late filings. See generally 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §24 (4th ed. 2001). In AEDPA, Congress prescribed a uniform rule: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U. S. C. §2244(d)(1). Footnote 2 Day urges this Court to find his petition timely. He asserts that the Eleventh Circuit misinterpreted §2244(d)(2) in holding that AEDPA’s time limitation was not tolled during the 90-day period he could have petitioned this Court to review the denial of his motion for state postconviction relief. See Brief for Petitioner 45–50. This question was not “set out in the petition [for certiorari], or fairly included therein,” and we therefore do not consider it here. This Court’s Rule 14.1(a). We note, however, that the Court recently granted certiorari in Lawrence v. Florida, No. 05–8820 (cert. granted, Mar. 27, 2006), which presents the question whether AEDPA’s time limitation is tolled during the pendency of a petition for certiorari from a judgment denying state postconviction relief. The instant opinion, we emphasize, addresses only the authority of the District Court to raise AEDPA’s time bar, not the correctness of its decision that the limitation period had run. Footnote 3 Day reads the Eleventh Circuit’s opinion in this case as rendering mandatory a district court’s sU. S.onte application of AEDPA’s one-year limitation, even when the respondent elects to waive the limitation and oppose the petition solely on the merits. See Tr. of Oral Arg. 6–8. He points to a sentence in the Eleventh Circuit’s brief per curiam opinion stating: “A federal court that sits in collateral review of a criminal judgment of a state court has an obligation to enforce the federal statute of limitations.” 391 F. 3d, at 1194. We read the Eleventh Circuit’s summary disposition in line with that court’s description of its controlling precedent: “We … ruled that, ‘even though the statute of limitations is an affirmative defense, the district court may review sU. S.onte the timeliness of [a federal habeas] petition.’ ” Ibid. (referring to Jackson v. Secretary for Dept. of Corrections, 292 F. 3d, at 1349 (emphasis added)); see also 391 F. 3d, at 1195 (State’s “patently erroneous” concession of timeliness “does not compromise the authority of a district court sU. S.onte to dismiss a habeas petition as untimely” under AEDPA’s one-year limitation (emphasis added)). Footnote 4 In AEDPA, enacted nearly a decade after Granberry, Congress expressly provided that “[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.” 28 U. S. C. §2254(b)(3). Footnote 5 Trest held that a Court of Appeals was not obliged to raise procedural default on its own initiative, but declined to decide whether courts have discretion to do so. 522 U. S., at 89. Footnote 6 Were we to accept Day’s position, courts would never (or, at least, hardly ever) be positioned to raise AEDPA’s time bar sU. S.onte. As this Court recognized in Pliler v. Ford, 542 U. S. 225, 232 (2004), information essential to the time calculation is often absent—as it was in this case—until the State has filed, along with its answer, copies of documents from the state-court proceedings. Footnote 7 The Habeas Rules were amended after the proceedings below. We cite the current version because both parties agree that the amendments to Rules 4 and 11, effective December 1, 2004, wrought no relevant substantive change. Footnote 8 See Rhines v. Weber, 544 U. S. 269, 276 (2005) (AEDPA’s time bar “quite plainly serves the well-recognized interest in the finality of state court judgments”; it “reduces the potential for delay on the road to finality[.]” (quoting Duncan v. Walker, 533 U. S. 167, 179 (2001))). Footnote 9 The Court is unanimous on this point. See post, at 5, n. 2 (Scalia, J., dissenting). Footnote 10 The procedural hindrance in Pliler was the petitioner’s failure to exhaust state remedies. The Court in that case declined to rule on the propriety of the stay-and-abeyance procedure that would enable a habeas petitioner to remain in federal court while exhausting unexhausted claims in state court. 542 U. S., at 231. In a later decision, Rhines, 544 U. S., at 278–279, this Court held that a district court has discretion to stay a mixed petition (i.e., one that includes both exhausted and unexhausted claims) to allow a habeas petitioner to present his unexhausted claims to the state court in the first instance, then return to federal court for review of his perfected petition. Footnote 11 A district court’s discretion is confined within these limits. As earlier noted, should a State intelligently choose to waive a statute of limitations defense, a district court would not be at liberty to disregard that choice. See supra, at 2. But see post, at 7 (Scalia, J., dissenting).
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548.US.1
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Petitioner was charged with receiving a firearm while under indictment in violation of 18 U. S. C. §922(n) and with making false statements in connection with the acquisition of a firearm in violation of §922(a)(6). She admitted at trial that she knew she was under indictment when she purchased the firearms and knew that doing so was a crime, but claimed that she was acting under duress because her boyfriend had threatened to harm her and her daughters if she did not buy the guns for him. Bound by Fifth Circuit precedent, the District Court declined her request for a jury instruction placing upon the Government the burden to disprove, beyond a reasonable doubt, her duress defense. Instead, the jury was instructed that petitioner had the burden to establish her defense by a preponderance of the evidence. She was convicted, and the Fifth Circuit affirmed. Held: 1. The jury instructions did not run afoul of the Due Process Clause. The crimes of conviction require that petitioner have acted “knowingly,” §922(a)(6)—which “merely requires proof of knowledge of the facts that constitute the offense,” Bryan v. United States, 524 U. S. 184, 193—or “willfully,” §924(a)(1)(D)—which requires acting “with knowledge that [the] conduct was unlawful,” ibid. Thus, the Government bore the burden of proving beyond a reasonable doubt that petitioner knew that she was making false statements and knew that she was breaking the law when she acquired a firearm while under indictment. It clearly met its burden when petitioner testified to that effect. Petitioner contends that she cannot have formed the necessary mens rea because she did not freely choose to commit the crimes. However, while the duress defense may excuse conduct that would otherwise be punishable, see United States v. Bailey, 444 U. S. 394, 409–410, the existence of duress normally does not controvert any of the elements of the offense itself. The fact that petitioner’s crimes are statutory offenses with no counterpart in the common law supports this conclusion. The jury instructions were consistent with the requirement that the Government prove the mental states specified in §§922(a)(6) and 924(a)(1)(D) and did not run afoul of due process by placing the burden on petitioner to establish duress by a preponderance of the evidence. Pp. 3–5. 2. Modern common law does not require the Government to bear the burden of disproving petitioner’s duress defense beyond a reasonable doubt. The long-established common-law rule, which places the burden of proving that defense on the defendant, was not upset by Davis v. United States, 160 U. S. 469. There, the Court interpreted a defendant’s insanity to controvert the necessary mens rea for a murder committed “feloniously, wilfully, and of his malice aforethought,” id., at 474, and required the Government to prove the defendant’s sanity beyond a reasonable doubt because the evidence tending to prove insanity also tended to disprove an essential element of the offense. The duress evidence that petitioner adduced at trial does not contradict or tend to disprove any element of her statutory offenses. She is also not helped by the resulting “Davis rule,” which was not constitutionally mandated, and which Congress overruled by statute, requiring a defendant to prove insanity by clear and convincing evidence. Petitioner’s reliance on Davis also ignores the fact that federal crimes are “solely creatures of statute,” Liparota v. United States, 471 U. S. 419, 424, and thus the Court must effectuate the duress defense as Congress “may have contemplated” it in the context of these specific offenses, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490, n. 3. The Court can assume that, when passing the relevant 1968 Act, Congress was familiar with the long-established common-law rule and the rule of McKelvey v. United States, 260 U. S. 353, 357—that the one relying on an affirmative defense must set it up and establish it—and would have expected federal courts to apply a similar approach to any affirmative defense or excuse for violating the new law. To accept petitioner’s contrary hypothesis that Davis dramatically upset well-settled law would require an overwhelming consensus among federal courts placing the burden on the Government, but conflict among the Circuits demonstrates that such consensus has never existed. For a similar reason, no weight is due the 1962 Model Penal Code. There is no evidence that Congress endorsed the Code’s views or incorporated them into the 1968 Act. In fact, when Congress amended the Act to add a mens rea requirement, it punished “willful” violations, a mental state not embraced by the Code. Effectuating the affirmative defense as Congress may have contemplated it, the Court presumes that, in the context of the firearms offenses here and the long-established common-law rule, Congress intended petitioner to bear the burden of proving the duress defense by a preponderance of the evidence. Pp. 5–15. 413 F. 3d 520, affirmed. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion, in which Souter, J., joined.
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In January 2003, petitioner Keshia Dixon purchased multiple firearms at two gun shows, during the course of which she provided an incorrect address and falsely stated that she was not under indictment for a felony. As a result of these illegal acts, petitioner was indicted and convicted on one count of receiving a firearm while under indictment in violation of 18 U. S. C. §922(n) and eight counts of making false statements in connection with the acquisition of a firearm in violation of §922(a)(6). At trial, petitioner admitted that she knew she was under indictment when she made the purchases and that she knew doing so was a crime; her defense was that she acted under duress because her boyfriend threatened to kill her or hurt her daughters if she did not buy the guns for him. Petitioner contends that the trial judge’s instructions to the jury erroneously required her to prove duress by a preponderance of the evidence instead of requiring the Government to prove beyond a reasonable doubt that she did not act under duress. The Court of Appeals rejected petitioner’s contention, 413 F. 3d 520 (CA5 2005); given contrary treatment of the issue by other federal courts,[Footnote 1] we granted certiorari, 546 U. S. __ (2006). I At trial, in her request for jury instructions on her defense of duress, petitioner contended that she “should have the burden of production, and then that the Government should be required to disprove beyond a reasonable doubt the duress.” App. 300. Petitioner admitted that this request was contrary to Fifth Circuit precedent, and the trial court, correctly finding itself bound by Circuit precedent, denied petitioner’s request. Ibid. Instead, the judge’s instructions to the jury defined the elements of the duress defense[Footnote 2] and stated that petitioner has “the burden of proof to establish the defense of duress by a preponderance of the evidence.” Id., at 312. Petitioner argues here, as she did in the District Court and the Court of Appeals, that federal law requires the Government to bear the burden of disproving her defense beyond a reasonable doubt and that the trial court’s erroneous instruction on this point entitles her to a new trial. There are two aspects to petitioner’s argument in support of her proposed instruction that merit separate discussion. First, petitioner contends that her defense “controverted the mens rea required for conviction” and therefore that the Due Process Clause requires the Government to retain the burden of persuasion on that element. Brief for Petitioner 41. Second, petitioner argues that Fifth Circuit’s rule is “contrary to modern common law.” Id., at 14. II The crimes for which petitioner was convicted require that she have acted “knowingly,” §922(a)(6), or “willfully,” §924(a)(1)(D).[Footnote 3] As we have explained, “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Bryan v. United States, 524 U. S. 184, 193 (1998) (footnote omitted). And the term “willfully” in §924(a)(1)(D) requires a defendant to have “acted with knowledge that his conduct was unlawful.” Ibid. In this case, then, the Government bore the burden of proving beyond a reasonable doubt that petitioner knew she was making false statements in connection with the acquisition of firearms and that she knew she was breaking the law when she acquired a firearm while under indictment. See In re Winship, 397 U. S. 358, 364 (1970). Although the Government may have proved these elements in other ways, it clearly met its burden when petitioner testified that she knowingly committed certain acts—she put a false address on the forms she completed to purchase the firearms, falsely claimed that she was the actual buyer of the firearms, and falsely stated that she was not under indictment at the time of the purchase—and when she testified that she knew she was breaking the law when, as an individual under indictment at the time, she purchased a firearm. App. 221–222. Petitioner contends, however, that she cannot have formed the necessary mens rea for these crimes because she did not freely choose to commit the acts in question. But even if we assume that petitioner’s will was overborne by the threats made against her and her daughters, she still knew that she was making false statements and knew that she was breaking the law by buying a firearm. The duress defense, like the defense of necessity that we considered in United States v. Bailey, 444 U. S. 394, 409–410 (1980), may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself.[Footnote 4] As we explained in Bailey, “[c]riminal liability is normally based upon the concurrence of two factors, ‘an evil-meaning mind [and] and evil-doing hand … .’ ” Id., at 402 (quoting Morissette v. United States, 342 U. S. 246, 251 (1952)). Like the defense of necessity, the defense of duress does not negate a defendant’s criminal state of mind when the applicable offense requires a defendant to have acted knowingly or willfully; instead, it allows the defendant to “avoid liability … because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.” Bailey, 444 U. S., at 402.[Footnote 5] The fact that petitioner’s crimes are statutory offenses that have no counterpart in the common law also supports our conclusion that her duress defense in no way disproves an element of those crimes. We have observed that “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Liparota v. United States, 471 U. S. 419, 424 (1985). Here, consistent with the movement away from the traditional dichotomy of general versus specific intent and toward a more specifically defined hierarchy of culpable mental states, see Bailey, 444 U. S., at 403–404, Congress defined the crimes at issue to punish defendants who act “knowingly,” §922(a)(6), or “willfully,” §924(a)(1)(D). It is these specific mental states, rather than some vague “evil mind,” Brief for Petitioner 42, or “ ‘criminal’ intent,” Martin v. Ohio, 480 U. S. 228, 235 (1987), that the Government is required to prove beyond a reasonable doubt, see Patterson v. New York, 432 U. S. 197, 211, n. 12 (1977) (“The applicability of the reasonable-doubt standard, however, has always been dependent on how a State defines the offense that is charged in any given case”). The jury instructions in this case were consistent with this requirement and, as such, did not run afoul of the Due Process Clause when they placed the burden on petitioner to establish the existence of duress by a preponderance of the evidence. III Having found no constitutional basis for placing upon the Government the burden of disproving petitioner’s duress defense beyond a reasonable doubt, we next address petitioner’s argument that the modern common law requires the Government to bear that burden. In making this argument, petitioner recognizes that, until the end of the 19th century, common-law courts generally adhered to the rule that “the proponent of an issue bears the burden of persuasion on the factual premises for applying the rule.” Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 898 (1967–1968). In petitioner’s view, however, two important developments have established a contrary common-law rule that now prevails in federal courts: this Court’s decision in Davis v. United States, 160 U. S. 469 (1895), which placed the burden on the Government to prove a defendant’s sanity, and the publication of the Model Penal Code in 1962. Although undisputed in this case, it bears repeating that, at common law, the burden of proving “affirmative defenses—indeed, ‘all circumstances … of justification, excuse or alleviation’—rested on the defendant.” Patterson, 432 U. S., at 202 (quoting 4 W. Blackstone, Commentaries *201); see also Martin v. Ohio, 480 U. S., at 235; Mullaney v. Wilbur, 421 U. S. 684, 693 (1975). This common-law rule accords with the general evidentiary rule that “the burdens of producing evidence and of persuasion with regard to any given issue are both generally allocated to the same party.” 2 J. Strong, McCormick on Evidence §337, p. 415 (5th ed. 1999). And, in the context of the defense of duress, it accords with the doctrine that “where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue.” Id., at 413. Although she claims that the common-law rule placing the burden on a defendant to prove the existence of duress “was the product of flawed reasoning,” petitioner accepts that this was the general rule, at least until this Court’s decision in Davis. Brief for Petitioner 18. According to petitioner, however, Davis initiated a revolution that overthrew the old common-law rule and established her proposed rule in its place. Davis itself, however, does not support petitioner’s position. In that case, we reviewed a defendant’s conviction for having committed murder “feloniously, wilfully, and of his malice aforethought.” 160 U. S., at 474. It was undisputed that the prosecution’s evidence “if alone considered, made it the duty of the jury to return a verdict of guilty of the crime charged”; the defendant, however, adduced evidence at trial tending to show that he did not have the mental capacity to form the requisite intent. Id., at 475. At issue before the Court was the correctness of the trial judge’s instruction to the jury that the law “ ‘presumes every man is sane, and the burden of showing it is not true is upon the party who asserts it.’ ” Id., at 476. Under this instruction, “if the evidence was in equilibrio as to the accused being sane, that is, capable of comprehending the nature and effect of his acts, he was to be treated just as he would be if there were no defence of insanity or if there was an entire absence of proof that he was insane.” Id., at 479. In reversing the defendant’s conviction, we found ourselves “unable to assent to the doctrine that in a prosecution for murder … it is the duty of the jury to convict where the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing.” Id., at 484 (emphasis added). Instead, we concluded that this defendant was “entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing the crime.” Ibid. (emphasis added). Our opinion focused on the “definition of murder,” explaining that “it is of the very essence of that heinous crime that it be committed by a person of ‘sound memory and discretion,’ and with ‘malice aforethought.’ ” Ibid. (citations omitted). Reviewing “the adjudged cases” and “elementary treatises upon criminal law,” we found that “[a]ll admit that the crime of murder necessarily involves the possession by the accused of such mental capacity as will render him criminally responsible for his acts.” Id., at 485. Thus, when we ultimately found that the burden of proving the accused’s sanity rested on the Government, our holding rested on the conclusion that: “[Davis’] guilt cannot be said to have been proved beyond a reasonable doubt—his will and his acts cannot be held to have joined in perpetrating the murder charged—if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) whether he wilfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?” Id., at 488. Our opinion in Davis, then, interpreted a defendant’s sanity to controvert the necessary mens rea for the crime of murder committed “feloniously, wilfully, and of his malice aforethought,” id., at 474, as “[o]ne who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have ‘a wicked, depraved, and malignant heart,’ … unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act,” id., at 485. We required the Government to prove the defendant’s sanity beyond a reasonable doubt because the evidence that tended to prove insanity also tended to disprove an essential element of the offense charged. See Davis v. United States, 165 U. S. 373, 378 (1897) (“[T]he fact of sanity, as any other essential fact in the case, must be established to the satisfaction of the jury beyond a reasonable doubt” (emphasis added)). Whether or not this reasoning correctly treated insanity as negating the mens rea for murder as defined in the statute at issue, cf., n. 4, supra, it does not help petitioner: The evidence of duress she adduced at trial does not contradict or tend to disprove any element of the statutory offenses that she committed. Nor does the proposition for which Davis has come to stand help petitioner’s cause. Although written more narrowly in the context of a prosecution for the crime of murder, Davis was later interpreted to establish a general “rule for federal prosecutions … that an accused is ‘entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.’ ” Leland v. Oregon, 343 U. S. 790, 797 (1952) (quoting Davis, 160 U. S., at 484); see also Lynch v. Overholser, 369 U. S. 705, 713 (1962) (explaining that the Davis rule applied in all federal courts). After Davis, if a federal defendant introduced sufficient evidence to raise a reasonable doubt as to his sanity, it was sufficient to create a question for the jury on which the Government bore the ultimate burden of persuasion beyond a reasonable doubt. See, e.g., Hall v. United States, 295 F. 2d 26, 28 (CA4 1961); Holloway v. United States, 148 F. 2d 665, 666 (CADC 1945); Post v. United States, 135 F. 1, 10 (CA5 1905). In apparent recognition of the fact that Davis relied on the heightened mens rea applicable to the particular statute at issue, we held in Leland that this rule was not constitutionally mandated, 343 U. S., at 797, and Congress overruled it by statute in 1984, requiring a defendant to prove his insanity by clear and convincing evidence, 98 Stat. 2057, codified at 18 U. S. C. §17(b). Moreover, Congress has treated the defense of insanity differently from that of duress not only by codifying it but by requiring defendants who intend to rely on an insanity defense to provide advance notice to the Government. See Fed. Rule Crim. Proc. 12.2(a). Thus, even if the rule arising from Davis may have once been relevant to an evaluation of other affirmative defenses, Congress’ differential treatment of the insanity defense and its rejection of the Davis rule are inconsistent with petitioner’s invitation to follow Davis’ lead in this case. Indeed, petitioner’s reliance on Davis ignores the fact that federal crimes “are solely creatures of statute,” Liparota, 471 U. S., at 424, and therefore that we are required to effectuate the duress defense as Congress “may have contemplated” it in the context of these specific offenses, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 491, n. 3 (2001) (internal quotation marks omitted); see also id., at 499 (Stevens, J., concurring in judgment) (explaining that Court was addressing whether the statute at issue foreclosed a necessity defense to specific charges brought under the statute); Bailey, 444 U. S., at 410 (“We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against charges brought under [18 U. S. C.] §751(a)”). The offenses at issue in this case were created by statute in 1968, when Congress enacted the Omnibus Crime Control and Safe Streets Act (hereinafter Safe Streets Act or Act). See 82 Stat. 197. There is no evidence in the Act’s structure or history that Congress actually considered the question of how the duress defense should work in this context, and there is no suggestion that the offenses at issue are incompatible with a defense of duress.[Footnote 6] Cf. Oakland Cannabis Buyers’ Cooperative, 532 U. S., at 491. Assuming that a defense of duress is available to the statutory crimes at issue,[Footnote 7] then, we must determine what that defense would look like as Congress “may have contemplated” it. As discussed above, the common law long required the defendant to bear the burden of proving the existence of duress. Similarly, even where Congress has enacted an affirmative defense in the proviso of a statute, the “settled rule in this jurisdiction [is] that an indictment or other pleading … need not negative the matter of an exception made by a proviso or other distinct clause … and that it is incumbent on one who relies on such an exception to set it up and establish it.” McKelvey v. United States, 260 U. S. 353, 357 (1922); see also United States v. Dickson, 15 Pet. 141, 165 (1841) (calling this “the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes”). Even though the Safe Streets Act does not mention the defense of duress, we can safely assume that the 1968 Congress was familiar with both the long-established common-law rule[Footnote 8] and the rule applied in McKelvey and that it would have expected federal courts to apply a similar approach to any affirmative defense that might be asserted as a justification or excuse for violating the new law.[Footnote 9] This conclusion is surely more reasonable than petitioner’s hypothesis that Davis dramatically upset a well-settled rule of law. Petitioner cites only one federal case decided before 1968 for the proposition that it has been well established in federal law that the Government bears the burden of disproving duress beyond a reasonable doubt. But that case involved a defendant’s claim that he “lacked the specific intent to defraud required by the statute for the reason that he committed the offense under duress and coercion.” Johnson v. United States, 291 F. 2d 150, 152 (CA8 1961). Thus, when the Court of Appeals explained that “there is no burden upon the defendant to prove his defense of coercion,” id., at 155, that statement is best understood in context as a corollary to the by-then-unremarkable proposition that “the burden of proof rests upon the Government to prove the defendant’s guilt beyond a reasonable doubt,” ibid. Properly understood, Johnson provides petitioner little help in her uphill struggle to prove that a dramatic shift in the federal common-law rule occurred between Davis and the enactment of the Safe Streets Act in 1968. Indeed, for us to be able to accept petitioner’s proposition, we would need to find an overwhelming consensus among federal courts that it is the Government’s burden to disprove the existence of duress beyond a reasonable doubt. The existence today of disagreement among the Federal Courts of Appeals on this issue, however—the very disagreement that caused us to grant certiorari in this case, see n. 1, supra—demonstrates that no such consensus has ever existed. See also post, at 6–8 (Breyer, J., dissenting) (discussing differences in treatment of the duress defense by the various Courts of Appeals). Also undermining petitioner’s argument is the fact that, in 1970, the National Commission on Reform of Federal Criminal Laws proposed that a defendant prove the existence of duress by a preponderance of the evidence. See 1 Working Papers 278. Moreover, while there seem to be few, if any, post-Davis, pre-1968 cases placing the burden on a defendant to prove the existence of duress,[Footnote 10] or even discussing the issue in any way, this lack of evidence does not help petitioner. The long-established common-law rule is that the burden of proving duress rests on the defendant. Petitioner hypothesizes that Davis fomented a revolution upsetting this rule. If this were true, one would expect to find cases discussing the matter. But no such cases exist. It is for a similar reason that we give no weight to the publication of the Model Penal Code in 1962. As petitioner notes, the Code would place the burden on the government to disprove the existence of duress beyond a reasonable doubt. See Model Penal Code §1.12, 10A U. L. A. 88 (2001) (hereinafter Model Penal Code or Code) (stating that each element of an offense must be proved beyond a reasonable doubt); §1.13(9)(c), at 91 (defining as an element anything that negatives an excuse for the conduct at issue); §2.09, at 131–132 (establishing affirmative defense of duress). Petitioner argues that the Code reflects “well established” federal law as it existed at the time. Brief for Petitioner 25. But, as discussed above, no such consensus existed when Congress passed the Safe Streets Act in 1968. And even if we assume Congress’ familiarity with the Code and the rule it would establish, there is no evidence that Congress endorsed the Code’s views or incorporated them into the Safe Streets Act. In fact, the Act itself provides evidence to the contrary. Despite the Code’s careful delineation of mental states, see Model Penal Code §2.02, 10A U. L. A., at 94–95, the Safe Streets Act attached no explicit mens rea requirement to the crime of receiving a firearm while under indictment, §924(a), 82 Stat. 233 (“Whoever violates any provision of this chapter … shall be fined not more than $5,000 or imprisoned not more than five years, or both”). And when Congress amended the Act to impose a mens rea requirement, it punished people who “willfully” violate the statute, see 100 Stat. 456, a mental state that has not been embraced by the Code, see Model Penal Code §2.02(2), 10A U. L. A., at 94–95 (defining “purposely,” “knowingly,” “recklessly,” and “negligently”); Explanatory Note, p. 97 (“Though the term ‘wilfully’ is not used in the definitions of crimes contained in the Code, its currency and its existence in offenses outside the criminal code suggest the desirability of clarification”). Had Congress intended to adopt the Code’s structure when it enacted or amended the Safe Streets Act, one would expect the Act’s form and language to adhere much more closely to that used by the Code. It does not, and, for that reason, we cannot rely on the Model Penal Code to provide evidence as to how Congress would have wanted us to effectuate the duress defense in this context. IV Congress can, if it chooses, enact a duress defense that places the burden on the Government to disprove duress beyond a reasonable doubt. In light of Congress’ silence on the issue, however, it is up to the federal courts to effectuate the affirmative defense of duress as Congress “may have contemplated” it in an offense-specific context. Oakland Cannabis Buyers’ Cooperative, 532 U. S., at 491, n. 3. In the context of the firearms offenses at issue—as will usually be the case, given the long-established common-law rule—we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Cf., e.g., United States v. Talbott, 78 F. 3d 1183, 1186 (CA7 1996) (per curiam); United States v. Riffe, 28 F. 3d 565, 568, n. 2 (CA6 1994); United States v. Simpson, 979 F. 2d 1282, 1287 (CA8 1992). Footnote 2 There is no federal statute defining the elements of the duress defense. We have not specified the elements of the defense, see, e.g., United States v. Bailey, 444 U. S. 394, 409–410 (1980), and need not do so today. Instead, we presume the accuracy of the District Court’s description of these elements: (1) The defendant was under an unlawful and imminent threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) the defendant had not recklessly or negligently placed herself in a situation in which it was probable that she would be forced to perform the criminal conduct; (3) the defendant had no reasonable, legal alternative to violating the law, that is, a chance both to refuse to perform the criminal act and also to avoid the threatened harm; and, (4) that a direct causal relationship may be reasonably anticipated between the criminal act and the avoidance of the threatened harm. See App. 312–313; see generally United States v. Harper, 802 F. 2d 115, 118 (CA5 1986). Footnote 3 Although §922(n) does not contain a mens rea requirement, the relevant sentencing provision, §924(a)(1)(D), requires that a violation be committed willfully. Footnote 4 As the Government recognized at oral argument, there may be crimes where the nature of the mens rea would require the Government to disprove the existence of duress beyond a reasonable doubt. See Tr. of Oral Arg. 26–27; see also, e.g., 1 W. LaFave, Substantive Criminal Law §5.1, p. 333 (2d ed. 2003) (hereinafter LaFave) (explaining that some common-law crimes require that the crime be done “ ‘maliciously’ ”); Black’s Law Dictionary 968 (7th ed. 1999) (defining malice as “[t]he intent, without justification or excuse, to commit a wrongful act”). Footnote 5 Professor LaFave has explained the duress defense as follows: “The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Nor is it that the defendant has not engaged in a voluntary act. Rather it is that, even though he has done the act the crime requires and has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is excused … .” 2 LaFave §9.7(a), at 72 (footnote omitted). Footnote 6 While Congress’ findings in support of the Safe Streets Act show that Congress was concerned because “the ease with which any person can acquire firearms … is a significant factor in the prevalence of lawlessness and violent crime in the United States,” §901(a)(2), 82 Stat. 225, it would be unrealistic to read this concern with the proliferation of firearm-based violent crime as implicitly doing away with a defense as strongly rooted in history as the duress defense, see, e.g., 4 W. Blackstone, Commentaries on the Laws of England 30 (1769). Footnote 7 We have previously made this assumption when addressing common-law affirmative defenses, see United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 491 (2001); Bailey, 444 U. S., at 410, and the parties give us no reason to question it here. Footnote 8 Indeed, when a congressional committee did consider codifying the duress defense, it would have had the courts determine the defense “according to the principles of the common law as they may be interpreted in the light of reason and experience.” S. 1437, 95th Cong., 2d Sess., §501 (1978). Footnote 9 Duress, like the defense at issue in McKelvey, is an excuse that allows an exception from liability. See, e.g., 2 LaFave §9.7, at 72 (“The rationale of the defense of duress is that the defendant ought to be excused when he ‘is the victim of a threat that a person of reasonable moral strength could not fairly be expected to resist’ ”). Footnote 10 In D’Aquino v. United States, 192 F. 2d 338, 358, n. 11 (CA9 1951), the trial court instructed the jury that it would be warranted in acquitting the defendant on the basis that she acted under duress “ ‘if you believe from the evidence that the defendant committed these acts that the Government alleges … under a well grounded apprehension of immediate death or serious bodily injury … .’ ” This instruction did not require the Government to disprove duress beyond a reasonable doubt, and it seemingly placed the burden on the defendant to prove the existence of duress.
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546.US.481
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Under the Postal Reorganization Act, the Federal Tort Claims Act (FTCA) applies to “tort claims arising out of [Postal Service] activities.” 39 U. S. C. §409(c). The FTCA, in turn, waives sovereign immunity in certain cases involving negligence committed by federal employees in the course of their employment, 28 U. S. C. §1346(b)(1), making the United States liable “in the same manner and to the same extent as a private individual under like circumstances,” §2674. However, the sovereign immunity bar remains as to, inter alia, “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” §2680(b). Consequently, the United States may be liable if postal workers commit torts under local law, but not for claims defined by the exception. Petitioner Dolan filed an FTCA suit against the Postal Service for injuries she suffered when she tripped and fell over mail left on her porch by postal employees. The District Court dismissed the suit, and the Third Circuit affirmed, both concluding that, although the FTCA generally waives sovereign immunity as to federal employees’ torts, Dolan’s claims were barred by §2680(b)’s exception. Held: Because the postal exception is inapplicable in this case, Dolan’s claim may go forward. This Court assumes that under the applicable state law a person injured by tripping over a package or bundle negligently left by a private party would have a cause of action for damages. The question is whether §2860(b)’s exception preserves sovereign immunity in such a case. Considered in isolation, “negligent transmission” could embrace a wide range of acts. However, interpretation of a word or phrase depends upon reading the whole statutory text, considering the statute’s purpose and context. Here, both context and precedent require reading the phrase so that it does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address. Starting with context, “negligent transmission” follows the terms “loss” and “miscarriage,” which limit the reach of transmission. Mail is “lost” if it is destroyed or misplaced and “miscarried” if it goes to the wrong address. Since both terms refer to failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if “negligent transmission” swept far more broadly to include injuries caused by postal employees but involving neither failure to transmit mail nor damage to its contents. This interpretation is supported by Kosak v. United States, 465 U. S. 848, where this Court noted that one of the FTCA’s purposes was to waive the Government’s immunity from liability for injuries resulting from auto accidents involving postal trucks delivering—and thus “transmitting”—the mail. Nothing in the statutory text supports a distinction between negligent driving, which the Government claims relates only circumstantially to the mail, and Dolan’s accident, which was caused by the mail itself. In both cases the postal employee acts negligently while transmitting mail. In addition, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on, e.g., whether a mail sack was empty or full. It is more likely that Congress intended to retain immunity only for injuries arising because mail either fails to arrive or arrives late, in damaged condition, or at the wrong address, since such harms are primarily identified with the Postal Service’s function of transporting mail. The Government claims that, given the Postal Service’s vast operations, Congress must have intended to insulate delivery-related torts from liability, but §2680(b)’s specificity indicates otherwise. Had Congress intended to preserve immunity for all delivery-related torts, it could have used sweeping language similar to that used in other FTCA exceptions, e.g., §2860(i). Furthermore, losses of the type for which immunity is retained under §2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service, but that is a risk shared by any business making home deliveries. Finally, the general rule that a sovereign immunity waiver “will be strictly construed … in favor of the sovereign,” Lane v. Peńa, 518 U. S. 187, 192, is “unhelpful” in the FTCA context, where “unduly generous interpretations of the exceptions run the risk of defeating” the central purpose of the statute, Kosak, supra, at 853, n. 9, which “waives the Government’s immunity from suit in sweeping language,” United States v. Yellow Cab Co., 340 U. S. 543, 547. Pp. 4–11. 377 F. 3d 285, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., took no part in the consideration or decision of the case.
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Each day, according to the Government’s submissions here, the United States Postal Service delivers some 660 million pieces of mail to as many as 142 million delivery points. This case involves one such delivery point—petitioner Barbara Dolan’s porch—where mail left by postal employees allegedly caused her to trip and fall. Claiming injuries as a result, Dolan filed a claim for administrative relief from the Postal Service. When her claim was denied, she and her husband (whose claim for loss of consortium the Dolans later conceded was barred for failure to exhaust administrative remedies) filed suit in the United States District Court for the Eastern District of Pennsylvania, asserting that the Postal Service’s negligent placement of mail at their home subjected the Government to liability under the Federal Tort Claims Act (FTCA), 28 U. S. C. §§1346(b)(1), 2674. The District Court dismissed Dolan’s suit, and the Court of Appeals for the Third Circuit affirmed, 377 F. 3d 285 (2004). Both courts concluded that, although the FTCA generally waives sovereign immunity as to federal employees’ torts, Dolan’s claims were barred by an exception to that waiver, 28 U. S. C. §2680(b). We disagree and hold that Dolan’s suit may proceed. I Under the Postal Reorganization Act, 39 U. S. C. §101 et seq., the Postal Service is “an independent establishment of the executive branch of the Government of the United States,” §201. Holding a monopoly over carriage of letters, the Postal Service has “significant governmental powers,” including the power of eminent domain, the authority to make searches and seizures in the enforcement of laws protecting the mails, the authority to promulgate postal regulations, and, subject to the Secretary of State’s supervision, the power to enter international postal agreements. See Postal Service v. Flamingo Industries (USA) Ltd., 540 U. S. 736, 741 (2004) (discussing 39 U. S. C. §§101, 401, 407, 601–606). Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a waiver. See ibid.; cf. FDIC v. Meyer, 510 U. S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit”). Although the Postal Reorganization Act generally “waives the immunity of the Postal Service from suit by giving it the power ‘to sue and be sued in its official name,’ ” Flamingo Industries, supra, at 741 (quoting 39 U. S. C. §401(1)), the statute also provides that the FTCA “shall apply to tort claims arising out of activities of the Postal Service,” §409(c). The FTCA, in turn, waives sovereign immunity in two different sections of the United States Code. The first confers federal-court jurisdiction in a defined category of cases involving negligence committed by federal employees in the course of their employment. This jurisdictional grant covers: “claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. §1346(b)(1). As to claims falling within this jurisdictional grant, the FTCA, in a second provision, makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances,” though not “for interest prior to judgment or for punitive damages.” §2674; see generally United States v. Olson, 546 U. S. ___ , ___ (2005) (slip op., at 1). The FTCA qualifies its waiver of sovereign immunity for certain categories of claims (13 in all). If one of the exceptions applies, the bar of sovereign immunity remains. The 13 categories of exempted claims are set forth in 28 U. S. C. §2680, and the relevant subsection for our purposes, pertaining to postal operations, is §2680(b). It states: “The provisions of this chapter and section 1346(b) of this title shall not apply to … [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” As a consequence, the United States may be liable if postal employees commit torts under local law, but not for claims defined by this exception. This was the provision relied upon by the District Court and Court of Appeals to dismiss Dolan’s suit. The Court of Appeals’ decision created a conflict with a decision of the Court of Appeals for the Second Circuit. See Raila v. United States, 355 F. 3d 118, 121 (CA2 2004). We granted certiorari. 544 U. S. ___ (2005). II We assume that under the applicable state law a person injured by tripping over a package or bundle of papers negligently left on the porch of a residence by a private party would have a cause of action for damages. See 28 U. S. C. §§1346(b)(1), 2674. The question is whether, when mail left by the Postal Service causes the slip and fall, the §2680(b) exception for “loss, miscarriage, or negligent transmission of letters or postal matter” preserves sovereign immunity despite the FTCA’s more general statements of waiver. If considered in isolation, the phrase “negligent transmission” could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail, including creation of slip-and-fall hazards from leaving packets and parcels on the porch of a residence. After all, in ordinary meaning and usage, transmission of the mail is not complete until it arrives at the destination. See, e.g., Webster’s Third New International Dictionary 2429 (1971) (defining “transmission” as “an act, process, or instance of transmitting” and “transmit” as “to cause to go or be conveyed to another person or place”). In large part this inference—transmission includes delivery—led the District Court and Court of Appeals to rule for the Government. See 377 F. 3d, at 288; App. to Pet. for Cert. 5a–6a. The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis. Here, we conclude both context and precedent require a narrower reading, so that “negligent transmission” does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address. See Raila, supra, at 121 (holding the postal exception covers “damages and delay of the postal material itself and consequential damages therefrom”). The phrase does not comprehend all negligence occurring in the course of mail delivery. Starting with context, the words “negligent transmission” in §2680(b) follow two other terms, “loss” and “miscarriage.” Those terms, we think, limit the reach of “transmission.” “[A] word is known by the company it keeps”—a rule that “is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); see also Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (“[W]ords grouped in a list should be given related meaning” (internal quotation marks omitted)). Here, as both parties acknowledge, mail is “lost” if it is destroyed or misplaced and “miscarried” if it goes to the wrong address. Since both those terms refer to failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if “negligent transmission” swept far more broadly to include injuries like those alleged here—injuries that happen to be caused by postal employees but involve neither failure to transmit mail nor damage to its contents. Our interpretation would be less secure were it not for a precedent we deem to have decisive weight here. We refer to Kosak v. United States, 465 U. S. 848 (1984). In Kosak, an art collector alleged in an FTCA suit that artworks he owned were damaged when the United States Customs Service seized and detained them. Id., at 849–850. The question was whether the Government retained immunity based on §2680(c), a provision that has since been amended but at the time covered: “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.” Id., at 852, n. 6 (internal quotation marks omitted). In its opinion concluding the exception did apply and thus that the United States retained sovereign immunity, the Court gave specific consideration to the postal exception. In a part of the opinion central to its holding, the Court contrasted what it called the “generality of §2680(c)” with the “specificity of §2680(b),” id., at 855. The Court observed: “One of the principal purposes of the Federal Tort Claims Act was to waive the Government’s immunity from liability for injuries resulting from auto accidents in which employees of the Postal System were at fault. In order to ensure that §2680(b), which governs torts committed by mailmen, did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility—namely, ‘the loss, miscarriage, or negligent transmission of letters or postal matter’—thereby excluding, by implication, negligent handling of motor vehicles.” Ibid. In the present case neither party suggests Kosak’s conclusion regarding negligent operation of postal motor vehicles should be ignored as dictum. In light of Kosak’s discussion, we cannot interpret the phrase “negligent transmission” in §2680(b) to cover all negligence in the course of mail delivery. Although postal trucks may well be delivering—and thus transmitting—mail when they collide with other vehicles, Kosak indicates the United States, nonetheless, retains no immunity. Seeking to distinguish postal auto accidents from Dolan’s fall, the Government argues that negligent driving relates only circumstantially to the mail, whereas Dolan’s accident was caused by the mail itself. Nothing in the statutory text supports this distinction. Quite the contrary, if placing mail so as to create a slip-and-fall risk constitutes “negligent transmission,” the same should be true of driving postal trucks in a manner that endangers others on the road. In both cases the postal employee acts negligently while transmitting mail. In addition, as the Second Circuit recognized and as the Government acknowledged at oral argument, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on whether a mail sack causing a slip-and-fall was empty or full, or whether a pedestrian sideswiped by a passing truck was hit by the side-view mirror or a dangling parcel. See Raila, 355 F. 3d, at 122–123. We think it more likely that Congress intended to retain immunity, as a general rule, only for injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address. Illustrative instances of the exception’s operation, then, would be personal or financial harms arising from nondelivery or late delivery of sensitive materials or information (e.g., medicines or a mortgage foreclosure notice) or from negligent handling of a mailed parcel (e.g., shattering of shipped china). Such harms, after all, are the sort primarily identified with the Postal Service’s function of transporting mail throughout the United States. Resisting this conclusion, the Government emphasizes the Postal Service’s vast operations—the 660 million daily mailings and 142 million delivery points mentioned at the outset. See Brief for Respondents 36. As delivery to mailboxes and doorsteps is essential to this nationwide undertaking, Congress must have intended, the Government asserts, to insulate delivery-related torts from liability. If, however, doorstep delivery is essential to the postal enterprise, then driving postal trucks is no less so. And in any event, while it is true “[t]he §2680 exceptions are designed to protect certain important governmental functions and prerogatives from disruption,” Molzof v. United States, 502 U. S. 301, 311 (1992), the specificity of §2680(b), see Kosak, 465 U. S., at 855, indicates that Congress did not intend to immunize all postal activities. Other FTCA exceptions paint with a far broader brush. They cover, for example: “[a]ny claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system,” 28 U. S. C. §2680(i); “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war,” §2680(j); “[a]ny claim arising in a foreign country,” §2680(k); “[a]ny claim arising from the activities of the Tennessee Valley Authority,” §2680(l), or “the Panama Canal Company,” §2680(m); and “[a]ny claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives,” §2680(n). Had Congress intended to preserve immunity for all torts related to postal delivery—torts including hazardous mail placement at customer homes—it could have used similarly sweeping language in §2680(b). By instead “carefully delineat[ing]” just three types of harm (loss, miscarriage, and negligent transmission), see Kosak, supra, at 855, Congress expressed the intent to immunize only a subset of postal wrongdoing, not all torts committed in the course of mail delivery. Further supporting our interpretation, losses of the type for which immunity is retained under §2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. See United States Postal Service, Domestic Mail Manual pt. 609.1.1 (Nov. 10, 2005), available at http://pe.usps.gov/text/dmm300/609.htm (as visited Jan. 9, 2006, and available in Clerk of Court’s case file) (allowing indemnity claims for loss or damage of “insured, collect on delivery (COD), registered with postal insurance, or Express Mail”); 39 CFR §111.1 (2005) (incorporating by reference the Domestic Mail Manual). The same was true when Congress enacted the FTCA in 1946. See 39 U. S. C. §245 (1940 ed. and Supp. V) (setting rates and conditions for mail insurance); 39 U. S. C. §381 (1946 ed.) (“For the greater security of valuable mail matter the Postmaster General may establish a uniform system of registration, and as a part of such system he may provide rules under which the senders or owners of any registered matter shall be indemnified for loss, rifling, or damage thereof in the mails …”). As Kosak explains, one purpose of the FTCA exceptions was to avoid “extending the coverage of the Act to suits for which adequate remedies were already available,” 465 U. S., at 858—an objective consistent with retaining immunity as to claims of mail damage or delay covered by postal registration and insurance. While the Government suggests other injuries falling outside the FTCA are also subject to administrative relief, even assuming that is true the provision the Government cites permits only discretionary relief, not an automatic remedy like postal insurance. See 39 U. S. C. §2603 (indicating the Postal Service “may adjust and settle” personal-injury and property-damage claims “not cognizable” under the FTCA’s administrative relief provision); see also 31 U. S. C. §224c (1940 ed.) (indicating that “[w]hen any damage is done to person or property by or through the operation of the Post Office Department … the Postmaster General is invested with power to adjust and settle any claim for such damage when his award for such damage in any case does not exceed $500”); Legislative Reorganization Act of 1946, §424(a), 60 Stat. 846–847 (repealing §224c as to negligence claims cognizable under the FTCA). The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service. It is true that, in addition to other considerations we have identified, Kosak describes “avoiding exposure of the United States to liability for excessive or fraudulent claims” as a principal aim of the FTCA exceptions, 465 U. S., at 858. Slip-and-fall liability, however, to the extent state tort law imposes it, is a risk shared by any business that makes home deliveries. Given that “negligent transmission,” viewed in context and in light of Kosak, cannot sweep as broadly as the Government claims, ordinary protections against frivolous litigation must suffice here, just as they do in the case of motor vehicle collisions. Finally, it should be noted that this case does not implicate the general rule that “a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign,” Lane v. Peńa, 518 U. S. 187, 192 (1996). As Kosak explains, this principle is “unhelpful” in the FTCA context, where “unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute,” 465 U. S., at 853, n. 9, which “waives the Government’s immunity from suit in sweeping language,” United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951); see also United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (observing “[w]e have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress’ clear intent, as in the context of the ‘sweeping language’ of the [FTCA]” (quoting Yellow Cab Co., supra, at 547)). Hence, “the proper objective of a court attempting to construe one of the subsections of 28 U. S. C. §2680 is to identify ‘those circumstances which are within the words and reason of the exception’—no less and no more.” Kosak, supra, at 853, n. 9 (quoting Dalehite v. United States, 346 U. S. 15, 31 (1953)). Having made that inquiry here, we conclude Dolan’s claims fall outside §2680(b). * * * The postal exception is inapplicable, and Dolan’s claim falls within the FTCA’s general waiver of federal sovereign immunity. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case.
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546.US.470
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Respondent McDonald, a black man, is sole shareholder and president of JWM Investments, Inc. (JWM). He sued petitioners (collectively Domino’s) under 42 U. S. C. §1981, alleging, inter alia, that JWM and Domino’s had entered into several contracts, that Domino’s had broken those contracts because of racial animus toward McDonald, and that the breach had harmed McDonald personally by causing him to suffer monetary damages and damages for emotional injuries. The District Court granted Domino’s motion to dismiss on the ground that McDonald could bring no §1981 claim against Domino’s because McDonald was party to no contract with Domino’s. Reversing, the Ninth Circuit acknowledged that an injury suffered only by the corporation would not permit a shareholder to bring a §1981 action, but concluded that when there are injuries distinct from those of the corporation, a nonparty like McDonald may nonetheless sue under §1981. Held: Consistent with this Court’s case law, and as required by the statute’s plain text, a plaintiff cannot state a §1981 claim unless he has (or would have) rights under the existing (or proposed) contract that he wishes “to make and enforce.” The statute, originally enacted as §1 of the Civil Rights Act of 1866, now protects the equal right of “[a]ll persons” to “make and enforce contracts” without respect to race, §1981(a), and defines “make and enforce contracts” to “includ[e] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits … of the contractual relationship,” §1981(b). This cannot be read to give McDonald a cause of action because he “made and enforced contracts” for JWM as its agent. The right to “make contracts” protected by the 1866 legislation was not the insignificant right to act as an agent for someone else’s contracting, but was rather the right, denied in some States to blacks, to give and receive contractual rights on one’s own behalf. The statute’s text makes this common meaning doubly clear by speaking of the right to “make and enforce” contracts. When the 1866 Act was drafted, a mere agent, who had no beneficial interest in a contract he made for his principal, could not generally sue on that contract. Any §1981 claim, therefore, must initially identify an impaired “contractual relationship,” §1981(b), under which the plaintiff has rights. McDonald’s complaint identifies a contractual relationship between Domino’s and JWM, but it is fundamental corporation and agency law that a corporation’s shareholder and contracting officer has no rights and is exposed to no liability under the corporation’s contracts. McDonald’s proposed new test for §1981 standing—whereby any person may sue if he is an “actual target” of discrimination and loses some benefit that would otherwise have inured to him had a contract not been impaired—ignores the explicit statutory requirement that the plaintiff be the “perso[n]” whose “right … to make and enforce contracts,” §1981(a), was “impair[ed],” §1981(c), on account of race. Shaare Tefila Congregation v. Cobb, 481 U. S. 615, 618; Runyon, supra, at 168; and Goodman v. Lukens Steel Co., 482 U. S. 656, 669, distinguished. McDonald’s policy argument that many discriminatory acts will go unpunished unless his reading of §1981 prevails goes beyond any expression of congressional intent and would produce satellite litigation of immense scope. Pp. 4–10. 107 Fed. Appx. 18, reversed. Scalia, J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
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We decide whether a plaintiff who lacks any rights under an existing contractual relationship with the defendant, and who has not been prevented from entering into such a contractual relationship, may bring suit under Rev. Stat. §1977, 42 U. S. C. §1981. I Respondent John McDonald, a black man, is the sole shareholder and president of JWM Investments, Inc. (JWM), a corporation organized under Nevada law. He sued petitioners (collectively Domino’s) in the District Court for the District of Nevada, claiming violations of §1981. The allegations of the complaint, which for present purposes we assume to be true, were as follows. JWM and Domino’s entered into several contracts under which JWM was to construct four restaurants in the Las Vegas area, which would be leased to Domino’s. After the first restaurant was completed, Domino’s agent Debbie Pear refused to execute the estoppel certificates for JWM required by the contracts to facilitate JWM’s bank financing. The relationship between the parties further deteriorated when Pear persuaded the Las Vegas Valley Water District to change its records to show Domino’s, rather than JWM, as the owner of the land JWM had acquired for restaurant construction. McDonald had to go to the Water District to prove JWM’s ownership of the land. In the course of what were apparently many and fruitless discussions between McDonald and Pear, McDonald “explained that he intended to see [the contracts] through to completion,” even though Pear made clear that unless he agreed to back out of the contractual relationship, he would suffer serious consequences. App. to Pet. for Cert. 12–13. At one point Pear said to McDonald “ ‘I don’t like dealing with you people anyway,’ ” refusing to specify what she meant by “ ‘you people.’ ” Id., at 13. Pear threatened to use Domino’s attorneys to “bury” McDonald if he should sue. Ibid. The contracts between Domino’s and JWM ultimately remained uncompleted. At least in part because of the failed contracts, JWM filed for Chapter 11 bankruptcy. The trustee for JWM’s bankruptcy estate initiated an adversary proceeding against Domino’s for breach of contract. For whatever reason, the trustee chose not to assert a §1981 claim alleging Domino’s interference with JWM’s right to make and enforce contracts. The breach of contract claim was settled for $45,000, and JWM gave Domino’s a complete release. Consequently, no further claims arising out of the same episode could be pursued on JWM’s behalf.[Footnote 1] While the bankruptcy proceedings were still ongoing, McDonald filed the present §1981 claim against Domino’s in his personal capacity. The gravamen of McDonald’s complaint was that Domino’s had broken its contracts with JWM because of racial animus toward McDonald, and that the breach had harmed McDonald personally by causing him “to suffer monetary damages and damages for pain and suffering, emotional distress, and humiliation.” Id., at 16. The complaint demanded that Domino’s discharge its “obligations under the contracts which McDonald would have received, but for the discriminatory practices, including, but not limited to front pay, back pay and other lost benefits,” as well as “compensatory damages for pecuniary losses, including pain and suffering, emotional distress, mental anguish, and humiliation,” and punitive damages. Id., at 17. Domino’s filed a motion to dismiss the complaint for failure to state a claim. It asserted that McDonald could bring no §1981 claim against Domino’s because McDonald was party to no contract with Domino’s. The District Court granted the motion. It noted that Domino’s had “rel[ied] on the basic proposition that a corporation is a separate legal entity from its stockholders and officers,” id., at 6, and concluded that a corporation may have “standing to assert a §1981 claim” but that “a president or sole shareholder may not step into the shoes of the corporation and assert that claim personally.” Id., at 7 (citing Guides, Ltd. v. Yarmouth Group Prop. Management, Inc., 295 F. 3d 1065, 1072–1073 (CA10 2002)). The Court of Appeals for the Ninth Circuit reversed. It agreed that an “injury suffered only by the corporation” would not permit a shareholder to bring a §1981 action. 107 Fed. Appx. 18 (2004). But relying on its earlier decision in Gomez v. Alexian Bros. Hospital of San Jose, 698 F. 2d 1019, 1021–1022 (1983), the Ninth Circuit concluded that when there are “injuries distinct from that of the corporation,” a nonparty like McDonald may nonetheless bring suit under §1981. 107 Fed. Appx., at 18–19. The Court of Appeals acknowledged that this approach set it apart from other Circuits. Ibid. We granted certiorari. 544 U. S. 998 (2005). II Among the many statutes that combat racial discrimination, §1981, originally §1 of the Civil Rights Act of 1866, 14 Stat. 27, has a specific function: It protects the equal right of “[a]ll persons within the jurisdiction of the United States” to “make and enforce contracts” without respect to race. 42 U. S. C. §1981(a). The statute currently defines “make and enforce contracts” to “includ[e] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” §1981(b). McDonald argues that the statute must be read to give him a cause of action because he “made and enforced contracts” for JWM. On his reading of the text, “[i]f Domino’s refused to deal with the salesman for a pepperoni manufacturer because the salesman was black, that would violate the section 1981 right of the salesman to make a contract on behalf of his principal.” Brief for Respondent 12. We think not. The right to “make contracts” guaranteed by the statute was not the insignificant right to act as an agent for someone else’s contracting—any more than it was the insignificant right to act as amanuensis in writing out the agreement, and thus to “make” the contract in that sense. Rather, it was the right—denied in some States to blacks, as it was denied at common law to children—to give and receive contractual rights on one’s own behalf. Common usage alone is enough to establish this, but the text of the statute makes this common meaning doubly clear by speaking of the right to “make and enforce” contracts. When the Civil Rights Act of 1866 was drafted, it was well known that “[i]n general a mere agent, who has no beneficial interest in a contract which he has made on behalf of his principal, cannot support an action thereon.” 1 S. Livermore, A Treatise on the Law of Principal and Agent 215 (1818).[Footnote 2] Any claim brought under §1981, therefore, must initially identify an impaired “contractual relationship,” §1981(b), under which the plaintiff has rights.[Footnote 3] Such a contractual relationship need not already exist, because §1981 protects the would-be contractor along with those who already have made contracts. We made this clear in Runyon v. McCrary, 427 U. S. 160 (1976), which subjected defendants to liability under §1981 when, for racially-motivated reasons, they prevented individuals who “sought to enter into contractual relationships” from doing so, id., at 172 (emphasis added). We have never retreated from what should be obvious from reading the text of the statute: Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship. Absent the requirement that the plaintiff himself must have rights under the contractual relationship, §1981 would become a strange remedial provision designed to fight racial animus in all of its noxious forms, but only if the animus and the hurt it produced were somehow connected to somebody’s contract. We have never read the statute in this unbounded—or rather, peculiarly bounded—way. See, e.g., Patterson v. McLean Credit Union, 491 U. S. 164, 176 (1989); Burnett v. Grattan, 468 U. S. 42, 44, n. 2 (1984); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 396 (1982). Nor has Congress indicated that we should. We held in Patterson that the prior version of §1981 did “not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations.” 491 U. S., at 171. In 1991, Congress amended the statute, see 105 Stat. 1071, adding §1981(b), which defines “make and enforce” to bring postformation conduct, including discriminatory termination, within the scope of §1981. See Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004). But while Congress revised Patterson’s exclusion of postformation conduct, it let stand Patterson’s focus upon contract obligations. In fact, it positively reinforced that element by including in the new §1981(b) reference to a “contractual relationship.” McDonald’s complaint does identify a contractual relationship, the one between Domino’s and JWM. But it is fundamental corporation and agency law—indeed, it can be said to be the whole purpose of corporation and agency law—that the shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation’s contracts. McDonald now makes light of the law of corporations and of agency—arguing, for instance, that because he “negotiated, signed, performed, and sought to enforce the contract,” Domino’s was wrong to “insist that [the contract] somehow was not his ‘own.’ ” Brief for Respondent 4. This novel approach to the law contradicts McDonald’s own experience. Domino’s filed a proof of claim against JWM during its corporate bankruptcy; it did not proceed against McDonald personally. The corporate form and the rules of agency protected his personal assets, even though he “negotiated, signed, performed, and sought to enforce” contracts for JWM. The corporate form and the rules of agency similarly deny him rights under those contracts. As an alternative to ignoring corporation and agency law, McDonald proposes a new test for §1981 standing: Any person who is an “actual target” of discrimination, and who loses some benefit that would otherwise have inured to him had a contract not been impaired, may bring a suit. Under this theory, an individual is the “actual target” if he was the reason a defendant chose to impair its contractual relationship with a third party. McDonald’s formulation simply ignores the explicit statutory requirement that the plaintiff be the “perso[n]” whose “right … to make and enforce contracts,” §1981(a), was “impair[ed],” §1981(c), on account of race. It is just the statutory construction we have always rejected. McDonald points to several of our prior cases involving plaintiffs whose status as contracting parties was unclear. Because they nonetheless prevailed, McDonald reasons, contractual privity cannot be a sine qua non of a §1981 claim. In those cases, however, we did not discuss, much less decide, the privity question. In Shaare Tefila Congregation v. Cobb, 481 U. S. 615 (1987), we decided the narrow question whether Jews are a separate and protected race under §1982. Id., at 618. Similarly, in Runyon, supra, the arguments and the opinion addressed “only two basic questions: whether §1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes, and, if so, whether that federal law is constitutional as so applied.” Id., at 168 (footnote omitted). And in Goodman v. Lukens Steel Co., 482 U. S. 656 (1987), we decided only the two contested issues: that §1981 was subject to the state personal injury limitations period, id., at 660–664, and that it violates Title VII of the Civil Rights Act of 1964 and §1981 for a union to decline to press black employees’ grievances under the governing collective-bargaining agreement, id., at 669. “The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, and such assumptions—even on jurisdictional issues—are not binding in future cases that directly raise the questions.” United States v. Verdugo-Urquidez, 494 U. S. 259, 272 (1990) (citations omitted). McDonald resorts finally to policy arguments. Unless his reading of the statute prevails, he warns, many discriminatory acts will go unpunished. Corporations, for instance, may choose not to bring suit for the racially motivated contract breach. It is not likely to be a common occurrence that the victim of a contract breach will forgo a potent available remedy. Injured parties “usually will be the best proponents of their own rights,” Singleton v. Wulff, 428 U. S. 106, 114 (1976). And if and when “the holders of those rights … do not wish to assert them,” id., at 113–114, third parties are not normally entitled to step into their shoes. Moreover, §1981 is only one of a multitude of civil rights statutes. Many of McDonald’s hypothetical examples of unpunished discrimination would in fact be reachable under Title VII—or even under general criminal law. See, e.g., Brief for Respondent 27 (concerning a scenario in which “Domino’s officials had beaten up McDonald in an attempt to intimidate him”). The most important response, however, is that nothing in the text of §1981 suggests that it was meant to provide an omnibus remedy for all racial injustice. If so, it would not have been limited to situations involving contracts. Trying to make it a cure-all not only goes beyond any expression of congressional intent but would produce satellite §1981 litigation of immense scope. McDonald’s theory would permit class actions by all the minority employees of the nonbreaching party to a broken contract (or, for that matter, minority employees of any company failing to receive a contract award), alleging that the reason for the breach (or for the refusal to contract) was racial animus against them. Consistent with our prior case law, and as required by the plain text of the statute, we hold that a plaintiff cannot state a claim under §1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes “to make and enforce.” Section 1981 plaintiffs must identify injuries flowing from a racially motivated breach of their own contractual relationship, not of someone else’s. Because the District Court correctly recognized and applied these principles, the Ninth Circuit erred in reversing its judgment.[Footnote 4] * * * The judgment of the Ninth Circuit is accordingly Reversed. Justice Alito took no part in the consideration or decision of this case. Footnote 1 Since JWM settled its claims and is not involved in this case, we have no occasion to determine whether, as a corporation, it could have brought suit under §1981. We note, however, that the Courts of Appeals to have considered the issue have concluded that corporations may raise §1981 claims. See, e.g., Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F. 2d 702, 706 (CA2 1982). Footnote 2 McDonald’s “pepperoni salesman” analogy is imprecise. It would better parallel the facts here if the analogy had been to a salesman unable to collect on accounts receivable because he was black, rather than to one who was unable to make the contract in the first place. The fundamental point, however, is the same: An individual seeking to make or enforce a contract under which he has rights will have a claim under 42 U. S. C. §1981, while one seeking to make or enforce a contract under which someone else has rights will not. Footnote 3 We say “under which the plaintiff has rights” rather than “to which the plaintiff is a party” because we do not mean to exclude the possibility that a third-party intended beneficiary of a contract may have rights under §1981. See, e.g., 2 Restatement (Second) of Contracts §304, p. 448 (1979) (“A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty”). Neither do we mean to affirm that possibility. See, e.g., Blessing v. Freestone, 520 U. S. 329, 349 (1997) (Scalia, J., concurring) (“Until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it”). The issue is not before us here, McDonald having made no such claim. Footnote 4 McDonald also argues in his merits brief (for the first time) that we should affirm the Ninth Circuit’s judgment because Domino’s interfered with McDonald’s own contracts with JWM. Counsel for McDonald asserted at oral argument that this contention is not a new argument (see this Court’s Rule 15.2), but is a “sort of formulatio[n] of the same argument” that he had properly raised. Tr. of Oral Arg. 28. As such, it fails for the same reasons that the argument fails in its original incarnation. McDonald acknowledges that JWM did not breach any contractual obligation to him, see Brief for Respondent 44, and so any injury he may have received still derived from impairment of the contractual relationship between JWM and Domino’s, under which McDonald has no rights.
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547.US.388
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Petitioners operate popular Internet Web sites that allow private sellers to list goods they wish to sell. Respondent sought to license its business method patent to petitioners, but no agreement was reached. In respondent’s subsequent patent infringement suit, a jury found that its patent was valid, that petitioners had infringed the patent, and that damages were appropriate. However, the District Court denied respondent’s motion for permanent injunctive relief. In reversing, the Federal Circuit applied its “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” 401 F. 3d 1323, 1339. Held: The traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. That test requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. The decision to grant or deny such relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion. These principles apply with equal force to Patent Act disputes. “[A] major departure from the long tradition of equity practice should not be lightly implied.” Weinberger v. Romero&nbhyph;Barcelo, 456 U. S. 305, 320. Nothing in the Act indicates such a departure. Pp. 2–6. 401 F. 3d 1323, vacated and remanded. Thomas, J., delivered the opinion for a unanimous Court. Roberts, C. J., filed a concurring opinion, in which Scalia and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion, in which Stevens, Souter, and Breyer, JJ., joined.
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Ordinarily, a federal court considering whether to award permanent injunctive relief to a prevailing plaintiff applies the four-factor test historically employed by courts of equity. Petitioners eBay Inc. and Half.com, Inc., argue that this traditional test applies to disputes arising under the Patent Act. We agree and, accordingly, vacate the judgment of the Court of Appeals. I Petitioner eBay operates a popular Internet Web site that allows private sellers to list goods they wish to sell, either through an auction or at a fixed price. Petitioner Half.com, now a wholly owned subsidiary of eBay, operates a similar Web site. Respondent MercExchange, L. L. C., holds a number of patents, including a business method patent for an electronic market designed to facilitate the sale of goods between private individuals by establishing a central authority to promote trust among participants. See U. S. Patent No. 5,845,265. MercExchange sought to license its patent to eBay and Half.com, as it had previously done with other companies, but the parties failed to reach an agreement. MercExchange subsequently filed a patent infringement suit against eBay and Half.com in the United States District Court for the Eastern District of Virginia. A jury found that MercExchange’s patent was valid, that eBay and Half.com had infringed that patent, and that an award of damages was appropriate.[Footnote 1] Following the jury verdict, the District Court denied MercExchange’s motion for permanent injunctive relief. 275 F. Supp. 2d 695 (2003). The Court of Appeals for the Federal Circuit reversed, applying its “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” 401 F. 3d 1323, 1339 (2005). We granted certiorari to determine the appropriateness of this general rule. 546 U. S.___ (2005). II According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. See, e.g., Weinberger v. Romero&nbhyph;Barcelo, 456 U. S. 305, 311–313 (1982); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987). The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion. See, e.g., Romero-Barcelo, 456 U. S., at 320. These familiar principles apply with equal force to disputes arising under the Patent Act. As this Court has long recognized, “a major departure from the long tradition of equity practice should not be lightly implied.” Ibid.; see also Amoco, supra, at 542. Nothing in the Patent Act indicates that Congress intended such a departure. To the contrary, the Patent Act expressly provides that injunctions “may” issue “in accordance with the principles of equity.” 35 U. S. C. §283.[Footnote 2] To be sure, the Patent Act also declares that “patents shall have the attributes of personal property,” §261, including “the right to exclude others from making, using, offering for sale, or selling the invention,” §154(a)(1). According to the Court of Appeals, this statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief. 401 F. 3d, at 1338. But the creation of a right is distinct from the provision of remedies for violations of that right. Indeed, the Patent Act itself indicates that patents shall have the attributes of personal property “[s]ubject to the provisions of this title,” 35 U. S. C. §261, including, presumably, the provision that injunctive relief “may” issue only “in accordance with the principles of equity,” §283. This approach is consistent with our treatment of injunctions under the Copyright Act. Like a patent owner, a copyright holder possesses “the right to exclude others from using his property.” Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932); see also id., at 127–128 (“A copyright, like a patent, is at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects” (internal quotation marks omitted)). Like the Patent Act, the Copyright Act provides that courts “may” grant injunctive relief “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U. S. C. §502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed. See, e.g., New York Times Co. v. Tasini, 533 U. S. 483, 505 (2001) (citing Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 578, n. 10 (1994)); Dun v. Lumbermen’s Credit Assn., 209 U. S. 20, 23–24 (1908). Neither the District Court nor the Court of Appeals below fairly applied these traditional equitable principles in deciding respondent’s motion for a permanent injunction. Although the District Court recited the traditional four-factor test, 275 F. Supp. 2d, at 711, it appeared to adopt certain expansive principles suggesting that injunctive relief could not issue in a broad swath of cases. Most notably, it concluded that a “plaintiff’s willingness to license its patents” and “its lack of commercial activity in practicing the patents” would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue. Id., at 712. But traditional equitable principles do not permit such broad classifications. For example, some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so. To the extent that the District Court adopted such a categorical rule, then, its analysis cannot be squared with the principles of equity adopted by Congress. The court’s categorical rule is also in tension with Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 422–430 (1908), which rejected the contention that a court of equity has no jurisdiction to grant injunctive relief to a patent holder who has unreasonably declined to use the patent. In reversing the District Court, the Court of Appeals departed in the opposite direction from the four-factor test. The court articulated a “general rule,” unique to patent disputes, “that a permanent injunction will issue once infringement and validity have been adjudged.” 401 F. 3d, at 1338. The court further indicated that injunctions should be denied only in the “unusual” case, under “exceptional circumstances” and “ ‘in rare instances . . . to protect the public interest.’ ” Id., at 1338–1339. Just as the District Court erred in its categorical denial of injunctive relief, the Court of Appeals erred in its categorical grant of such relief. Cf. Roche Products v. Bolar Pharmaceutical Co., 733 F. 2d 858, 865 (CAFed 1984) (recognizing the “considerable discretion” district courts have “in determining whether the facts of a situation require it to issue an injunction”). Because we conclude that neither court below correctly applied the traditional four-factor framework that governs the award of injunctive relief, we vacate the judgment of the Court of Appeals, so that the District Court may apply that framework in the first instance. In doing so, we take no position on whether permanent injunctive relief should or should not issue in this particular case, or indeed in any number of other disputes arising under the Patent Act. We hold only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards. Accordingly, we vacate the judgment of the Court of Appeals, and remand for further proceedings consistent with this opinion. It is so ordered. Footnote 1 EBay and Half.com continue to challenge the validity of MercExchange’s patent in proceedings pending before the United States Patent and Trademark Office. Footnote 2 Section 283 provides that “[t]he several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”
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546.US.189
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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) gives a state prisoner whose conviction has become final one year to seek federal habeas corpus relief, 28 U. S. C. §2244(d)(1)(A), but tolls this 1-year limitations period for the “time during which a properly filed application for State … collateral review . . . is pending,” §2244(d)(2). Under California’s collateral review scheme, the equivalent of a notice of appeal is timely if filed within a “reasonable time.” In Carey v. Saffold, 536 U. S. 214, this Court held, inter alia, that (1) only a timely appeal tolls AEDPA’s limitations period for the time between the lower court’s adverse decision and the filing of a notice of appeal; (2) in California, “unreasonable” delays are not timely; and (most pertinently) (3) a California Supreme Court order denying a petition “on the merits” does not automatically indicate that the petition was timely filed. Respondent Chavis, a California state prisoner, filed a state habeas petition on May 14, 1993, which the trial court denied. On September 29, 1994, the California Court of Appeal also held against him. He then waited more than three years before seeking review in the California Supreme Court. On April 29, 1998, that court issued an order stating simply that the petition was denied. On August 30, 2000, Chavis filed a federal habeas petition. After the case reached it, the Ninth Circuit concluded that the federal petition’s timeliness depended on whether Chavis’ state postconviction relief application was “pending,” therefore tolling AEDPA’s limitations period, during the 3-year period between the time the California Court of Appeal issued its opinion and the time he sought review in the State Supreme Court. The Ninth Circuit held that the state application was “pending” because under Circuit precedent a denial without comment or citation is treated as a denial on the merits, and a petition denied on the merits was not untimely. Held: The Ninth Circuit departed from Saffold’s interpretation of AEDPA as applied to California’s system. Pp. 7–12. (a) Contrary to Saffold, the Circuit in this case said in effect that the California Supreme Court’s denial of a petition “on the merits” did automatically mean that the petition was timely. More than that, it treated a State Supreme Court order that was silent on the grounds for the court’s decision as equivalent to an order in which the words “on the merits” appeared. If the appearance of “on the merits” does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant such a holding. Absent (1) clear direction or explanation from the California Supreme Court about the meaning of “reasonable time” in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the Ninth Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness. This is what this Court believes it asked the Circuit to do in Saffold. This is what this Court believes the Circuit should have done here. Pp. 7–8. (b) Given the uncertain scope of California’s “reasonable time” standard, it may not be easy for the Ninth Circuit to decide in each of the several hundred federal habeas petitions from California prisoners it hears annually whether a prisoner’s state-court review petition was timely. However, for the reasons given in Saffold, the Circuit’s attempt to create shortcuts looking to the label the California Supreme Court applied to the denial order, even where that label does not refer to timeliness, are not true, either to California’s timeliness rule or to AEDPA’s intent to toll the 1-year limitations period only when the state collateral review proceeding is “pending.” Saffold, 536 U. S., at 220–221, 225–226. The California courts might alleviate the problem by clarifying the scope of “reasonable time” or by indicating, when denying a petition, whether the filing was timely. And the Ninth Circuit might seek guidance by certifying a question to the State Supreme Court in an appropriate case. Id., at 226–227. Alternatively, the California Legislature might decide to impose more determinate time limits, conforming California law with that of most other States. Absent any such guidance from state law, however, the Ninth Circuit’s only alternative is to simply ask and decide whether the state prisoner’s filing was made within a reasonable time. In doing so, the Circuit must be mindful that, in Saffold, this Court held that timely filings in California fell within the federal tolling provision on the assumption that California’s “reasonable time” standard would not lead to filing delays substantially longer than those in States with determinate timeliness rules. Id., at 222–223. Pp. 8–10. (c) Chavis did not file his petition for review in the California Supreme Court within a reasonable time. This Court’s examination of the record refutes his claim that his 3-year, 1-month, delay was reasonable because he could not use the prison library to work on his petition during this period. And since Chavis needs all but two days of that lengthy delay to survive the federal 1-year habeas filing period, he cannot succeed. Pp. 10–12. 382 F. 3d 921, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in the judgment.
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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or Act) requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year. 28 U. S. C. §2244(d)(1)(A). The Act tolls this 1-year limitations period for the “time during which a properly filed application for State post-conviction or other collateral review … is pending.” §2244(d)(2). The time that an application for state postconviction review is “pending” includes the period between (1) a lower court’s adverse determination, and (2) the prisoner’s filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law. Carey v. Saffold, 536 U. S. 214 (2002). In most States a statute sets out the number of days for filing a timely notice of appeal, typically a matter of a few days. See id., at 219. California, however, has a special system governing appeals when prisoners seek relief on collateral review. Under that system, the equivalent of a notice of appeal is timely if filed within a “reasonable time.” In re Harris, 5 Cal. 4th 813, 828, n. 7, 855 P. 2d 391, 398, n. 7 (1993); see also Saffold, supra, at 221. In this case, the Ninth Circuit found timely a California prisoner’s request for appellate review made three years after the lower state court ruled against him. Chavis v. LeMarque, 382 F. 3d 921 (2004). We conclude that the Circuit departed from our interpretation of the Act as applied to California’s system, Carey v. Saffold, supra, and we therefore reverse its judgment. I We begin with our holding in Carey v. Saffold. In that case we addressed three questions. A We initially considered the question just mentioned: For purposes of tolling AEDPA’s 1-year limitations period, is a state habeas application “pending” during the interval between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner timely files an appeal? We answered this question “yes.” 536 U. S., at 219–221. If the filing of the appeal is timely, the period between the adverse lower court decision and the filing (typically just a few days) is not counted against the 1-year AEDPA time limit. B We then pointed out that in most States a prisoner who seeks review of an adverse lower court decision must file a notice of appeal in a higher court, and the timeliness of that notice of appeal is measured in terms of a determinate time period, such as 30 or 60 days. Id., at 219. As we explained, however, California has a different rule. In California, a state prisoner may seek review of an adverse lower court decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a “reasonable time.” Id., at 221. We asked whether this distinction made a difference for AEDPA tolling purposes. We answered that question “no.” Id., at 222–223. California’s system is sufficiently analogous to appellate review systems in other States to treat it similarly. See id., at 222 (“The upshot is that California’s collateral review process functions very much like that of other States, but for the fact that its timeliness rule is indeterminate”). As long as the prisoner filed a petition for appellate review within a “reasonable time,” he could count as “pending” (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court. Id., at 222–223. We added, “The fact that California’s timeliness standard is general rather than precise may make it more difficult for federal courts to determine just when a review application (i.e., a filing in a higher court) comes too late.” Id., at 223. Nonetheless, the federal courts must undertake that task. C We considered finally whether the state habeas petition at issue in the case had itself been timely filed. Saffold had filed that petition (a petition for review by the California Supreme Court) not within 30 or even 60 days after the lower court (the California Court of Appeal) had reached its adverse decision, but, rather, 412 months later. The filing was not obviously late, however, because the delay might have been due to excusable neglect—Saffold said he had taken 412 months because he had not received timely notice of the adverse lower court decision. Id., at 226. We sent the case back to the Ninth Circuit to decide whether the prisoner had filed his California Supreme Court petition within a “reasonable time,” thus making the filing timely under California law. We also set forth several legal propositions that set the boundaries within which the Ninth Circuit must answer this question. First, we pointed out that if “the California Supreme Court had clearly ruled that Saffold’s 412-month delay was ‘unreasonable,’ that would be the end of the matter.” Ibid. Second, we noted that the California Supreme Court order denying Saffold’s petition had stated that the denial was “ ‘on the merits and for lack of diligence.’ ” Id., at 225. But, we added, these words alone did not decide the question. Id., at 225–226. Third, we stated that the words “lack of diligence” did not prove that the California Supreme Court thought the petition was untimely. That is because those words might have referred to a totally different, earlier delay that was “irrelevant” to the timeliness of Saffold’s California Supreme Court petition. Id., at 226. Fourth, we stated that the words “on the merits” did not prove that the California Supreme Court thought the petition was timely. That is because the California Supreme Court might have decided to address the merits of the petition even if the petition had been untimely. A “court,” we said, “will sometimes address the merits of a claim that it believes was presented in an untimely way: for instance, where the merits present no difficult issue; where the court wants to give a reviewing court alternative grounds for decision; or where the court wishes to show a prisoner (who may not have a lawyer) that it was not merely a procedural technicality that precluded him from obtaining relief.” Id., at 225–226. We ultimately concluded that the Ninth Circuit must not take “such words” (i.e., the words “on the merits”) as “an absolute bellwether” on the timeliness question. Id., at 226 (emphasis added). We pointed out that the Circuit’s contrary approach (i.e., an approach that presumed that an order denying a petition “on the merits” meant that the petition was timely) would lead to the tolling of AEDPA’s limitations period in circumstances where the law does not permit tolling. Ibid. And we gave as an example of the incorrect approach a case in which the Ninth Circuit had found timely a petition for review filed four years after the lower court reached its decision. Ibid. (citing Welch v. Newland, 267 F. 3d 1013 (CA9 2001)). II We turn now to the present case. Respondent Reginald Chavis, a California state prisoner, filed a state habeas corpus petition on May 14, 1993. The trial court denied the petition. He sought review in the California Court of Appeal, which also held against him. The Court of Appeal released its decision on September 29, 1994. Chavis then waited more than three years, until November 5, 1997, before filing a petition for review in the California Supreme Court. On April 29, 1998, the California Supreme Court denied the petition in an order stating simply, “Petition for writ of habeas corpus [i.e., review in the California Supreme Court] is DENIED.” App. G to Pet. for Cert. 1. Subsequently, on August 30, 2000 (after bringing a second round of state habeas petitions), Chavis filed a federal habeas petition. The State asked the federal court to dismiss the petition on the ground that it was untimely. After all, AEDPA gives prisoners only one year to file their federal petitions, and Chavis had filed his federal petition more than four years after AEDPA became effective. Still, AEDPA also provides for tolling, adding to the one year those days during which an application for state collateral review is “pending.” And the federal courts consequently had to calculate how many days Chavis’ state collateral review applications had been “pending” in the state courts and add those days to the 1-year limitations period. Ultimately, after the case reached the Ninth Circuit, that court concluded that the timeliness of the federal petition turned upon whether the “pending” period included the 3-year period between (1) the time a lower state court, the California Court of Appeal issued its opinion (September 29, 1994), and (2) the time Chavis sought review in a higher state court, the California Supreme Court (on November 5, 1997). The Ninth Circuit held that the state collateral review application was “pending” during this time; hence, it should add those three years to the federal 1-year limitations period, and the addition of those three years, along with various other additions, rendered the federal filing timely. The Ninth Circuit’s reasoning as to why it should add the three years consists of the following: “Under our decision in Saffold, because Chavis’s November 1997 habeas petition to the California Supreme Court was denied on the merits, it was pending during the interval between the Court of Appeal decision and the Supreme Court petition and he is entitled to tolling. See [Saffold v. Carey, 312 F. 3d 1031, 1034–1036 (CA9 2002)]. When the California Supreme Court denies a habeas petition without comment or citation, we have long treated the denial as a decision on the merits. Hunter v. Aispuro, 982 F. 2d 344, 348 (9th Cir. 1992). Therefore, the California Supreme Court’s summary denial was on the merits, and the petition was not dismissed as untimely. See id.; see also Delhomme v. Ramirez, 340 F. 3d 817, 819, 820 n. 2 (9th Cir. 2003) (noting that there was no indication that a state habeas petition was untimely where the California Supreme Court denied the petition without comment or citation). As a result, Chavis is entitled to tolling during [the relevant period].” 382 F. 3d, at 926 (emphasis added). California sought certiorari on the ground that the Ninth Circuit’s decision was inconsistent with our holding in Saffold. We granted the writ. III A California argues that the Ninth Circuit’s decision in this case is inconsistent with our decision in Saffold. Like California, we do not see how it is possible to reconcile the two cases. In Saffold, we held that (1) only a timely appeal tolls AEDPA’s 1-year limitations period for the time between the lower court’s adverse decision and the filing of a notice of appeal in the higher court; (2) in California, “unreasonable” delays are not timely; and (3) (most pertinently) a California Supreme Court order denying a petition “on the merits” does not automatically indicate that the petition was timely filed. In addition, we referred to a Ninth Circuit case holding that a 4-year delay was reasonable as an example of what the law forbids the Ninth Circuit to do. Nonetheless, the Ninth Circuit in this case said in effect that the California Supreme Court’s denial of a petition “on the merits” did automatically mean that the petition was timely (and thus that a 3-year delay was reasonable). More than that, it treated an order from the California Supreme Court that was silent on the grounds for the court’s decision as if it were equivalent to an order in which the words “on the merits” appeared. 382 F. 3d, at 926. If the appearance of the words “on the merits” does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely. After all, the fact that the California Supreme Court did not include the words “on the merits” in its order denying Chavis relief makes it less likely, not more likely, that the California Supreme Court believed that Chavis’ 3-year delay was reasonable. Thus, the Ninth Circuit’s presumption (“that an order decided entirely on the merits indicates that the state court did not find the petition to be untimely,” post, at 4 (opinion of Stevens, J.)) is not consistent with Saffold. See supra, at 4. Neither do the cases cited by the Ninth Circuit provide it with the necessary legal support. The Circuit’s opinion in Saffold (written on remand from this Court) said nothing about the significance of the words “on the merits.” Saffold v. Carey, 312 F. 3d 1031 (2002). Hunter v. Aispuro, 982 F. 2d 344 (CA9 1992), predated AEDPA, not to mention our decision in Saffold, and in any event concerned an entirely different issue of federal habeas corpus law. Delhomme v. Ramirez, 340 F. 3d 817 (CA9 2003), addressed the timeliness issue in one sentence in a footnote, id., at 820, n. 2, and did not discuss at any length our opinion in Saffold, which must control the result here. In the absence of (1) clear direction or explanation from the California Supreme Court about the meaning of the term “reasonable time” in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness. That is to say, without using a merits determination as an “absolute bellwether” (as to timeliness), the federal court must decide whether the filing of the request for state-court appellate review (in state collateral review proceedings) was made within what California would consider a “reasonable time.” See supra, at 3. This is what we believe we asked the Circuit to do in Saffold. This is what we believe it should have done. B The discrepancy between the Ninth Circuit’s view of the matter and ours may reflect an administrative problem. The Ninth Circuit each year must hear several hundred petitions by California prisoners seeking federal habeas relief. Some of these cases will involve filing delays, and some of those delays will require the federal courts to determine whether a petition for appellate review in a related state collateral proceeding was timely. Given the uncertain scope of California’s “reasonable time” standard, it may not be easy for the Circuit to decide in each such case whether the prisoner’s state-court review petition was timely. And it is consequently not surprising that the Circuit has tried to create rules of thumb that look to the label the California Supreme Court applied to the denial order, even where that label does not refer to timeliness. For the reasons we gave in Saffold, however, we do not believe these shortcuts remain true, either to California’s timeliness rule or to Congress’ intent in AEDPA to toll the 1-year limitations period only when the state collateral review proceeding is “pending.” 536 U. S., at 220–221, 225–226. The California courts themselves might alleviate the problem by clarifying the scope of the words “reasonable time” in this context or by indicating, when denying a petition, whether the filing was timely. And the Ninth Circuit might seek guidance on the matter by certifying a question to the California Supreme Court in an appropriate case. Id., at 226–227. Alternatively, the California Legislature might itself decide to impose more determinate time limits, conforming California law in this respect with the law of most other States. Indeed, either state body might adopt a state-law presumption of the kind the concurrence here suggests. See post, at 8–9. In the absence of any such guidance, however, we see no alternative way of applying state law to a case like this one but for the Ninth Circuit simply to ask and to decide whether the state prisoner made the relevant filing within a reasonable time. In doing so, the Circuit must keep in mind that, in Saffold, we held that timely filings in California (as elsewhere) fell within the federal tolling provision on the assumption that California law in this respect did not differ significantly from the laws of other States, i.e., that California’s “reasonable time” standard would not lead to filing delays substantially longer than those in States with determinate timeliness rules. 536 U. S., at 222–223. California, of course, remains free to tell us if, in this respect, we were wrong. IV As we have pointed out, supra, at 5, Chavis had one year from the date AEDPA became effective (April 24, 1996) to file a federal habeas petition. Chavis did not actually file his petition in federal district court until August 30, 2000, four years and 128 days after AEDPA’s effective date. Hence Chavis’ federal petition was timely only if “a properly filed application for State post-conviction or other collateral review [was] pending” for at least three years and 128 days of this time. 28 U. S. C. §2244(d)(2). Under the Ninth Circuit’s reasoning Chavis’ state collateral review proceedings were “pending” for three years and 130 days, which period (when added to the 1-year federal limitations period) makes the federal petition timely. As we have explained, however, we find the Ninth Circuit’s reasoning in conflict with our Saffold holding. And, after examining the record, we are convinced that the law does not permit a holding that Chavis’ federal habeas petition was timely. Chavis filed his state petition for habeas review in the California Supreme Court approximately three years and one month after the California Court of Appeal released its decision denying him relief. Chavis tries to explain this long delay by arguing that he could not use the prison library to work on his petition during this time either because (1) his prison job’s hours coincided with those of the library, or (2) prison lockdowns confined him to his cell. And, he adds, his inability to use the library excuses the three year and one month delay—to the point where, despite the delay, he filed his petition for California Supreme Court review within a “reasonable time.” Chavis concedes, however, that in March 1996, App. 38, about a year and a half after the California Court of Appeal denied his habeas petition, he was given a new prison job. He nowhere denies California’s assertion, id., at 68, that this new job’s working hours permitted him to use the library. And he also concedes that the prison “remained relatively lockdown free” between February 1997 and August 1997, id., at 39, a 6-month period. Thus, viewing every disputed issue most favorably to Chavis, there remains a totally unexplained, hence unjustified, delay of at least six months. Six months is far longer than the “short period[s] of time,” 30 to 60 days, that most States provide for filing an appeal to the state supreme court. Saffold, supra, at 219. It is far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court, see Cal. App. Ct. Rule 28(e)(1) (2004). We have found no authority suggesting, nor found any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay “reasonable.” Nor do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word “pending” as interpreted in Saffold. See 536 U. S., at 222–223. Thus, since Chavis needs all but two days of the lengthy (three year and one month) delay to survive the federal 1-year habeas filing period, see 382 F. 3d, at 927, he cannot succeed. The concurrence reaches the same ultimate conclusion in a different way. Unlike the Ninth Circuit, it would not count in Chavis’ favor certain days during which Chavis was pursuing a second round of state collateral review efforts. See post, at 10. Because, as the Ninth Circuit pointed out, the parties did not argue this particular matter below, 382 F. 3d, at 925, n. 3, we do not consider it here. For these reasons, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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548.US.30
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Immigration law has for some time provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully reenters. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA) to enlarge the class of illegal reentrants whose orders may be reinstated and limit the possible relief from a removal order available to them. See §241(a)(5), 8 U. S. C. §1235(a)(5). Petitioner Fernandez-Vargas, a Mexican citizen, illegally reentered the United States in 1982, after having been deported. He remained undetected for over 20 years, fathering a son in 1989 and marrying the boy’s mother, a United States citizen, in 2001. After he filed an application to adjust his status to that of a lawful permanent resident, the Government began proceedings to reinstate his 1981 deportation order under §241(a)(5), and deported him. He petitioned the Tenth Circuit to review the reinstatement order, claiming that, because he illegally reentered the county before IIRIRA’s effective date, §241(a)(5) did not bar his application for adjustment of status, and that §241(a)(5) would be impermissibly retroactive if it did bar his adjustment application. The court held that §241(a)(5) barred his application and followed Landgraf v. USI Film Products, 511 U. S. 244, in determining that the new law had no impermissibly retroactive effect in his case. Held: Section 241(a)(5) applies to those who reentered the United States before IIRIRA’s effective date and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before this Court. Pp. 5–16. (a) Statutes are disfavored as retroactive when their application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, supra, at 280. A statute is not given retroactive effect “unless such construction is required by explicit language or by necessary implication.” United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3. In determining whether a statute has an impermissibly retroactive effect, the Court first looks to “whether Congress has expressly prescribed the statute’s proper reach,” Landgraf, supra, at 280, and in the absence of express language tries to draw a comparably firm conclusion about the temporal reach specifically intended by applying its “normal rules of construction,” Lindh v. Murphy, 521 U. S. 320, 326. If that effort fails, the Court asks whether applying the statute to the person objecting would have a retroactive effect in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278. If the answer is yes, the Court then applies the presumption against retroactivity by construing the statute as inapplicable to the event or act in question. INS v. St. Cyr, 533 U. S. 289, 316. Pp. 5–7. (b) Common principles of statutory interpretation fail to unsettle §241(a)(5)’s apparent application to any reentrant present in the country, whatever the date of return. The statute does not expressly include in or exclude from §241(a)(5)’s ambit individuals who illegally entered the country before IIRIRA’s effective date. Fernandez-Vargas argues that the fact that the old reinstatement provision applied to aliens who had “unlawfully reentered … after having previously departed or been deported … , whether before or after June 27, 1952 [the INA’s effective date], on any ground described in … subsection (e),” §242(f), while §241(a)(5) lacks language of temporal reach, shows that Congress no longer meant to cover preenactment reentrants. But the old before-or-after clause, which was sandwiched between references to departure or deportation and grounds for deportation, most naturally referred not to an alien’s illegal reentry but to the previous deportation or departure. The better inference is that the clause was removed because, in 1996, application keyed to departures in 1952 or earlier was academic. Applying §241(a)(5) only to deportations or departures after IIRIRA’s effective date would exempt anyone who departed before that date but reentered after it. That would be a strange result, since the statute was revised to expand the scope of the reinstatement authority and invest it with something closer to finality. Fernandez-Vargas errs in suggesting that the new law is bereft of clarity and the Court should apply the presumption against retroactivity as a tool for interpreting the statute at the first Landgraf step. It is not until a statute is shown to have no firm provision about temporal reach but to produce a retroactive effect when straightforwardly applied that the presumption has its work to do. And IIRIRA has other provisions on temporal reach, which blunt Fernandez-Vargas’s argument that a negative inference in his favor may be drawn from removal of the before-or-after clause. Pp. 7–10. (c) This facial reading is confirmed by two features of IIRIRA. First, the provision’s text shows that it applies here not because Fernandez-Vargas reentered at any particular time, but because he chose to remain after the new statute became effective. While the law looks back to “an alien [who] has reentered … illegally,” 8 U. S. C. §1231(a)(5), the provision does not penalize an alien for the reentry; it establishes a process to remove him under a “prior order any time after the reentry,” ibid. Thus, it is the conduct of remaining in the country after entry that is the predicate action; the law applies to stop an indefinitely continuing violation that the alien could end at any time by voluntarily leaving. It is therefore the alien’s choice to continue his illegal presence, after illegal reentry and after the new law’s effective date, that subjects him to the new and less generous regime, not a past act that is he helpless to undo. INS v. St. Cyr, supra, distinguished. Second, IIRIRA’s effective date provision shows that Fernandez-Vargas had ample warning of the coming change in the law, but chose to remain until the old regime expired and §241(a)(5) took its place. He had an opportunity to avoid the new law’s application by leaving the country and ending his violation during the 6 months between IIRIRA’s enactment and effective date. For that matter, he could have married his son’s mother and applied for adjustment of status during the period, in which case he would at least have had a claim that proven reliance on the law should be honored by applying the presumption against retroactivity. Instead, he augmented his 15 years of unlawful presence by remaining in the country into the future subject to the new law. And the presumption against retroactivity does not amount to a presumption of legal stasis for the benefit of continuous lawbreakers. Pp. 11–15. 394 F. 3d 881, affirmed. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion.
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For some time, the law has provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully enters again. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104–208, div. C, 110 Stat. 3009–546, enlarged the class of illegal reentrants whose orders may be reinstated and limited the possible relief from a removal order available to them. See Immigration and Nationality Act (INA), §241(a)(5), 66 Stat. 204, as added by IIRIRA §305(a)(3), 110 Stat. 3009–599, 8 U. S. C. §1231(a)(5). The questions here are whether the new version of the reinstatement provision is correctly read to apply to individuals who reentered the United States before IIRIRA’s effective date, and whether such a reading may be rejected as impermissibly retroactive. We hold the statute applies to those who entered before IIRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before us. I In 1950, Congress provided that deportation orders issued against some aliens who later reentered the United States illegally could be reinstated.[Footnote 1] Internal Security Act of 1950, §23(d), 64 Stat. 1012, 8 U. S. C. §156(d) (1946 ed., Supp. V).[Footnote 2] Only specific illegal reentrants were subject to the provision, those deported as “anarchists” or “subversives,” for example, see §23(c), 64 Stat. 1012, while the rest got the benefit of the ordinary deportation rules. Congress retained a reinstatement provision two years later when it revised the immigration laws through the INA, §242(f), 66 Stat. 212, as codified in this subsection: “Should the Attorney General find that any alien has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952,[Footnote 3] on any ground described in subsection (e) … , the previous order of deportation shall be deemed to be reinstated from its original date and such alien shall be deported under such previous order at any time subsequent to such reentry.” 8 U. S. C. §1252(f) (1994 ed.). Again, only a limited class of illegal reentrants was susceptible, see §242(e), 66 Stat. 211; cf. §241(a), id., at 204, and even those affected could seek some varieties of discretionary relief, see, e.g., 8 U. S. C. §1254(a)(1) (1994 ed.) (suspension of deportation available to aliens who maintained a continuous presence in the United States for seven years and could demonstrate extreme hardship and a good moral character). In IIRIRA, Congress replaced this reinstatement provision with one that toed a harder line, as the old §242(f) was displaced by the new §241(a)(5): “If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.” 8 U. S. C. §1231(a)(5) (1994 ed., Supp. III). The new law became effective on April 1, 1997, “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment. §309(a), 110 Stat. 3009–625. Unlike its predecessor, §241(a)(5) applies to all illegal reentrants, explicitly insulates the removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.[Footnote 4] II Humberto Fernandez-Vargas is a citizen of Mexico, who first came to the United States in the 1970s, only to be deported for immigration violations, and to reenter, several times, his last illegal return having been in 1982. Then his luck changed, and for over 20 years he remained undetected in Utah, where he started a trucking business and, in 1989, fathered a son, who is a United States citizen. In 2001, Fernandez-Vargas married the boy’s mother, who is also a United States citizen. She soon filed a relative-visa petition on behalf of her husband, see 8 U. S. C. §§1154(a), 1151(b) (2000 ed.); see Fernandez-Vargas v. Ashcroft, 394 F. 3d 881, 883, n. 4 (CA10 2005), on the basis of which he filed an application to adjust his status to that of lawful permanent resident, see §1255(i). The filings apparently tipped off the authorities to his illegal presence here, and in November 2003, the Government began proceedings under §241(a)(5) that eventuated in reinstating Fernandez-Vargas’s 1981 deportation order, but without the possibility of adjusting his status to lawful residence. He was detained for 10 months before being removed to Juarez, Mexico in September 2004. Fernandez-Vargas petitioned the United States Court of Appeals for the Tenth Circuit to review the reinstatement order. He took the position that because he illegally reentered the country before IIRIRA’s effective date, the controlling reinstatement provision was the old §242(f), which meant he was eligible to apply for adjustment of status as spouse of a citizen, and he said that the new §241(a)(5) would be impermissibly retroactive if it barred his application for adjustment. The Court of Appeals held that §241(a)(5) did bar Fernandez-Vargas’s application and followed Landgraf v. USI Film Products, 511 U. S. 244 (1994), in determining that the new law had no impermissibly retroactive effect in Fernandez-Vargas’s case. 394 F. 3d, at 886, 890–891. We granted certiorari to resolve a split among the Courts of Appeals over the application of §241(a)(5) to an alien who reentered illegally before IIRIRA’s effective date,[Footnote 5] 546 U. S. ___ (2005), and we now affirm. III Statutes are disfavored as retroactive when their application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, supra, at 280. The modern law thus follows Justice Story’s definition of a retroactive statute, as “tak[ing] away or impair[ing] vested rights acquired under existing laws, or creat[ing] a new obligation, impos[ing] a new duty, or attach[ing] a new disability, in respect to transactions or considerations already past,” Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814). Accordingly, it has become “a rule of general application” that “a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.” United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926) (opinion for the Court by Brandeis, J.). This Court has worked out a sequence of analysis when an objection is made to applying a particular statute said to affect a vested right or to impose some burden on the basis of an act or event preceding the statute’s enactment. We first look to “whether Congress has expressly prescribed the statute’s proper reach,” Landgraf, supra, at 280, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the temporal reach specifically intended by applying “our normal rules of construction,” Lindh v. Murphy, 521 U. S. 320, 326 (1997). If that effort fails, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278; see also Lindh, supra, at 326. If the answer is yes, we then apply the presumption against retroactivity by construing the statute as inapplicable to the event or act in question owing to the “absen[ce of] a clear indication from Congress that it intended such a result.” INS v. St. Cyr, 533 U. S. 289, 316 (2001); see Martin v. Hadix, 527 U. S. 343, 352 (1999) (quoting Landgraf, supra, at 280). Fernandez-Vargas fights at each step of the way, arguing that Congress intended that INA §241(a)(5) would not apply to illegal reentrants like him who returned to this country before the provision’s effective date; and in any event, that application of the provision to such illegal reentrants would have an impermissibly retroactive effect, to be avoided by applying the presumption against it. We are not persuaded by either contention.[Footnote 6] A Needless to say, Congress did not complement the new version of §241(a)(5) with any clause expressly dealing with individuals who illegally reentered the country before IIRIRA’s April 1, 1997, effective date, either including them within §241(a)(5)’s ambit or excluding them from it. Fernandez-Vargas argues instead on the basis of the generally available interpretive rule of negative implication, when he draws attention to language governing temporal reach contained in the old reinstatement provision, but missing from the current one. Section 242(f) applied to “any alien [who] has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in … subsection (e).” 8 U. S. C. §1252(f) (1994 ed.). According to Fernandez-Vargas, since that before-or-after clause made it clear that the statute applied to aliens who reentered before the enactment date of the earlier version, its elimination in the current iteration shows that Congress no longer meant to cover preenactment reentrants. See Brewster v. Gage, 280 U. S. 327, 337 (1930) (“deliberate selection of language … differing from that used in the earlier Acts” can indicate “that a change of law was intended”); cf. 2B N. Singer, Statutes and Statutory Construction §51.04, p. 244 (6th rev. ed. 2000). But the clues are not that simple. To begin with, the old before-or-after clause was sandwiched between references to departure or deportation under a deportation order and to grounds for deportation set out in a different subsection of the INA. It thus most naturally referred not to the illegal reentry but to the alien’s previous deportation or departure. If its omission from the new subsection (a)(5) is significant, its immediate significance goes to the date of leaving this country, not the date of illegal return. Since the old clause referred to the date of enactment of the INA in 1952, the negative implication argument from dropping the language is that the reinstatement section no longer applies to those who left the country before that date. But, in 1996, application keyed to departures in 1952 or earlier was academic, and the better inference is that the clause was removed for that reason.[Footnote 7] If, moreover, we indulged any suggestion that omitting the clause showed an intent to apply §241(a)(5) only to deportations or departures after IIRIRA’s effective date, the result would be a very strange one: it would exempt from the new reinstatement provision’s coverage anyone who departed before IIRIRA’s effective date but reentered after it. The point of the statute’s revision, however, was obviously to expand the scope of the reinstatement authority and invest it with something closer to finality, and it would make no sense to infer that Congress meant to except the broad class of persons who had departed before the time of enactment but who might return illegally at some point in the future. Fernandez-Vargas sidesteps this problem (on a very generous reading of his argument) by making a more general suggestion of congressional intent: whatever the event to which the old law was tied, activity before as well as activity after it implicated the reinstatement power. Since the new law is bereft of such clarity, we should apply the “ ‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,’ ” St. Cyr, 533 U. S., at 320 (quoting INS v. Cardoza&nbhyph;Fonseca, 480 U. S. 421, 449 (1987)), which would effectively impose “[t]he presumption against retroactive application of ambiguous statutory provisions,” St. Cyr, supra, at 320. If we did so, we would find that §241(a)(5) operates only to reentries after its effective date. Even at this amorphously general level, however, the argument suffers from two flaws, the first being that it puts the cart before the horse. As Fernandez-Vargas realizes, he urges application of the presumption against retroactivity as a tool for interpreting the statute at the first Landgraf step. But if that were legitimate, a statute lacking an express provision about temporal reach would never be construed as having a retroactive potential and the final two steps in the Landgraf enquiry would never occur (that is, asking whether the statute would produce a retroactive effect, and barring any such application by applying the presumption against retroactivity). It is not until a statute is shown to have no firm provision about temporal reach but to produce a retroactive effect when straightforwardly applied that the presumption has its work to do. See 511 U. S., at 280. The second flaw is the argument’s failure to account for the new statute’s other provisions on temporal reach, from which one might draw a negative inference that subsection (a)(5) was (or at least may well have been) meant to apply to reentries before its effective date. In contrast to their silence about the temporal sweep of §241(a)(5), the 1996 amendments speak directly to the scope of changes in provisions making reentry criminal and setting civil penalties. IIRIRA §324(c), 110 Stat. 3009–629, note following 8 U. S. C. §1326 (2000 ed.), provides that the expanded criminal prohibitions, see §1326(a), apply only to reentries or attempts after the effective date, and §105(b), 110 Stat. 3009–556, note following 8 U. S. C. §1325, provides the same as to civil penalties for illegal reentry, see §1325(b). The point here is not that these provisions alone would support an inference of intent to apply the reinstatement provision retroactively, see Lindh, 521 U. S., at 328, n. 4, for we require a clear statement for that, see Martin, 527 U. S., at 354. But these provisions do blunt any argument that removal of the before-or-after clause suffices to establish the applicability of §241(a)(5) only to posteffective date reentries. The fact is that IIRIRA sometimes expressly made changes prospective as from its effective date and sometimes expressly provided they were applicable to earlier acts; compare §§324(c) and 105(b), with §347(c), 110 Stat. 3009–639 (provision governing removal of aliens who have unlawfully voted is applicable “to voting occurring before, on, or after the date of the enactment of this Act”), and §351(c), id., at 3009–640 (provision applicable to “waivers filed before, on, or after the date of the enactment of this Act”). With such a variety of treatment, it is just too hard to infer any clear intention at any level of generality from the fact of retiring the old before-or-after language from what is now §241(a)(5). One conclusion can be stated, however. Common principles of statutory interpretation fail to unsettle the apparent application of §241(a)(5) to any reentrant present in the country, whatever the date of return.[Footnote 8] B This facial reading is confirmed by two features of IIRIRA, not previously discussed, that describe the conduct to which §241(a)(5) applies, and show that the application suffers from no retroactivity in denying Fernandez-Vargas the opportunity for adjustment of status as the spouse of a citizen of the United States.[Footnote 9] One is in the text of that provision itself, showing that it applies to Fernandez-Vargas today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective. The second is the provision setting IIRIRA’s effective date, §309(a), 110 Stat. 3009–625, which shows that Fernandez-Vargas had an ample warning of the coming change in the law, but chose to remain until the old regime expired and §241(a)(5) took its place. As a preface to identifying the conduct by Fernandez-Vargas to which the reinstatement provision applies (the conduct that results in reinstating the old deportation order without the former opportunities to seek adjustment of status), a look at our holding in St. Cyr, 533 U. S. 289, is helpful. The alien, St. Cyr, was a lawful, permanent resident who made a plea agreement and pleaded guilty to an aggravated felony charge. Although the resulting conviction justified his deportation, when he entered his plea the law allowed him to seek a waiver of deportation at the discretion of the Attorney General. Between the plea and deportation proceedings, however, IIRIRA and another statute repealed the provision for that discretionary relief, converting deportation from a possibility to a certainty. Id., at 325. The question was whether Landgraf barred application of the new law eliminating discretionary relief, on the ground that applying it to a defendant who pleaded guilty before the enactment of the new law would attach a further burdensome consequence to his plea, amounting to “a new disability, in respect to transactions or considerations already past,” 533 U. S., at 321 (internal quotation marks omitted). The answer was that converting deportation from a likely possibility to a dead certainty would add such a burden, and application of the new law was accordingly barred. Id., at 325. In making this “commonsense, functional judgment,” Martin, supra, at 357, we emphasized that plea agreements “involve a quid pro quo between a criminal defendant and the government,” St. Cyr, 533 U. S., at 321, in which a waiver of “constitutional rights (including the right to a trial),” had been exchanged for a “perceived benefit,” id., at 322, which in practical terms was valued in light of the possible discretionary relief, a focus of expectation and reliance, id., at 323. St. Cyr’s agreement for a quid pro quo and his plea were entirely past, and there was no question of undoing them, but the “transactio[n] or consideratio[n]” on which §241(a)(5) turns is different.[Footnote 10] While the law looks back to a past act in its application to “an alien [who] has reentered … illegally,” 8 U. S. C. §1231(a)(5), the provision does not penalize an alien for the reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry.” Ibid. Thus, it is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out. That in itself is enough to explain that Fernandez-Vargas has no retroactivity claim based on a new disability consequent to a completed act, but in fact his position is weaker still. For Fernandez-Vargas could not only have chosen to end his continuing violation and his exposure to the less favorable law, he even had an ample warning that the new law could be applied to him and ample opportunity to avoid that very possibility by leaving the country and ending his violation in the period between enactment of §241(a)(5) and its effective date. IRRIRA became law on September 30, 1996, but it became effective and enforceable only on “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment, that is, April 1, 1997. §309(a), 110 Stat. 3009–625. Unlawful alien reentrants like Fernandez-Vargas thus had the advantage of a grace period between the unequivocal warning that a tougher removal regime lay ahead and actual imposition of the less opportune terms of the new law. In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential exposure to the coming law by crossing back into Mexico.[Footnote 11] For that matter, he could have married the mother of his son and applied for adjustment of status during that period, in which case he would at least have had a claim (about which we express no opinion) that proven reliance on the old law should be honored by applying the presumption against retroactivity.[Footnote 12] Fernandez-Vargas did not, however, take advantage of the statutory warning, but augmented his past 15 years of unlawful presence by remaining in the country into the future subject to the new law, whose applicability thus turned not on the completed act of reentry, but on a failure to take timely action that would have avoided application of the new law altogether. To be sure, a choice to avoid the new law before its effective date or to end the continuing violation thereafter would have come at a high personal price, for Fernandez-Vargas would have had to leave a business and a family he had established during his illegal residence. But the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law. What Fernandez-Vargas complains of is the application of new law to continuously illegal action within his control both before and after the new law took effect. He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous. But “[i]f every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever.” L. Fuller, The Morality of Law 60 (1964) (quoted in Landgraf, 511 U. S., at 269, n. 24).[Footnote 13] Because we conclude that §241(a)(5) has no retroactive effect when applied to aliens like Fernandez-Vargas, we affirm the judgment of the Court of Appeals. It is so ordered. Footnote 1 What was formerly known as “deportation” is now called “removal” in IIRIRA. See Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998) (IIRIRA “realigned the vocabulary of immigration law, creating a new category of ‘removal’ proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings”). Our use of each term here will vary according to the scheme under discussion. Footnote 2 This is the full text of the provision: “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous warrant of deportation against him shall be considered as reinstated from its original date of issuance.” Footnote 3 A date was inserted when the provision was codified; as originally enacted, the text read, “whether before or after the date of enactment of this Act.” 66 Stat. 212. Footnote 4 Notwithstanding the absolute terms in which the bar on relief is stated, even an alien subject to §241(a)(5) may seek withholding of removal under 8 U. S. C. §1231(b)(3)(A) (2000 ed.) (alien may not be removed to country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion”), or under 8 CFR §§241.8(e) and 208.31 (2006) (raising the possibility of asylum to aliens whose removal order has been reinstated under INA §241(a)(5)). Footnote 5 Two Courts of Appeals have held that §241(a)(5) does not apply at all to aliens who reentered before the provision’s effective date, see Bejjani v. INS, 271 F. 3d 670 (CA6 2001); Castro-Cortez v. INS, 239 F. 3d 1037 (CA9 2001), while eight have held that it does, at least in some circumstances, see Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003); Avila-Macias v. Ashcroft, 328 F. 3d 108 (CA3 2003); Velasquez-Gabriel v. Crocetti, 263 F. 3d 102 (CA4 2001); Ojeda-Terrazas v. Ashcroft, 290 F. 3d 292 (CA5 2002); Faiz-Mohammad v. Ashcroft, 395 F. 3d 799 (CA7 2005); Alvarez-Portillo v. Ashcroft, 280 F. 3d 858 (CA8 2002); 394 F. 3d 881 (CA10 2005) (case below); Sarmiento Cisneros v. United States Attorney General, 381 F. 3d 1277 (CA11 2004). The Courts of Appeals in the majority are themselves divided on the question whether an alien’s marriage or application for adjustment of status before the statute’s effective date (facts not in play here) renders the statute impermissibly retroactive when it is applied to the alien. See, e.g., Faiz-Mohammad, supra, at 809–810 (application for adjustment of status); Alvarez-Portillo, supra, at 862, 867 (marriage). Footnote 6 The Government urges us to forgo Landgraf analysis altogether because §241(a)(5) regulates only a present removal process, not past primary conduct, citing our recent decision in Republic of Austria v. Altmann, 541 U. S. 677 (2004). Although we ultimately agree with the Government, in the abstract at least, that the reinstatement provision concerns itself with postenactment affairs, see infra, at 13–15, we find the Government’s allusion to Altmann inapt. The Court’s conclusion in that case, that Landgraf was to be avoided, turned on the peculiarities of the Foreign Sovereign Immunities Act. See Altmann, supra, at 694–696. Those peculiarities are absent here, and we thus advert to Landgraf, as we ordinarily do. Footnote 7 We therefore need not entertain Fernandez-Vargas’s argument that the provision’s drafting history indicates that the language was eliminated deliberately. Footnote 8 Justice Stevens states that when, in 1952, Congress inserted the before-or-after clause with the old §242(f), it was responding to the Immigration and Naturalization Service (INS) practice of applying the reinstatement provision only to deportation orders issued after the provision’s enactment, a practice that necessarily meant INS applied the provision only to postenactment reentries. By correcting the INS’s interpretation only as to deportation orders, Justice Stevens suggests, Congress did nothing to disturb the practice as to reentries. And when it removed the obsolete before-or-after clause in 1996 without adding alternative language of temporal reach, the argument goes, Congress held fast to its intent in 1950 and 1952 to apply the reinstatement provision only to postenactment reentries. But the INS’s practice circa 1951 of applying the reinstatement provision only to postenactment reentries followed from its policy regarding deportation orders, and in 1952 Congress might just as easily have assumed that the branch would go the way of the root. In any event, it is difficult to accept Justice Stevens’s view that congressional understanding from 40 years back was intended to govern the IIRIRA reinstatement provision, given Congress’s care to make the revised criminal and civil penalties applicable only to postenactment reentries. Footnote 9 We would reach the same conclusion about denial of opportunities to apply for permission for voluntary departure as an alternative to removal, see 8 U. S. C. §1229c, and about cancellation of removal, see §1229b(b), if there were a need to deal with these matters separately. Although Fernandez-Vargas argues that he is being denied the chance to seek these forms of relief, he never applied for either of them and has not formally attempted to claim them in response to the reinstatement and removal proceedings. Footnote 10 We understand Fernandez-Vargas’s claim as falling within the second of Justice Story’s categories of retroactivity (new consequences of past acts), not the first category of canceling vested rights. The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by §241(a)(5) include cancellation of removal, see 8 U. S. C. §1229b(b), adjustment of status, see §1255, and voluntary departure, see §1229c. These putative claims to relief are not “vested rights,” a term that describes something more substantial than inchoate expectations and unrealized opportunities. In contrast to “an immediate fixed right of present or future enjoyment,” Pearsall v. Great Northern R. Co., 161 U. S. 646, 673 (1896) (internal quotation marks omitted), Fernandez-Vargas’s claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary, cf. St. Cyr, 533 U. S., at 325; it is rather that before IIRIRA’s effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular, as St. Cyr did in making his quid pro quo agreement, see supra, at 11–12. Footnote 11 In a series of letters submitted to the Court after oral argument, the parties dispute the consequences if Fernandez-Vargas had left voluntarily after IIRIRA’s enactment and, specifically, the period of inadmissibility to which Fernandez-Vargas would thereupon have been subject. Because we conclude that §241(a)(5) does not operate on a completed pre-enactment act, we need not consider the retroactive implications either of the fact of his inadmissibility or of any variance between the period of inadmissibility upon a postenactment voluntary return and that prescribed under the old regime. The period of inadmissibility stems from an alien’s illegal reentry within a specified time after a prior removal and is applicable to Fernandez-Vargas because he reentered shortly after his 1981 deportation, but Fernandez-Vargas does not challenge as impermissibly retroactive IIRIRA’s lengthening of that period from 5 to 10 or 20 years, see 8 U. S. C. §1182(a)(6)(B) (1994 ed.); §1182(a)(9)(A)(ii) (2000 ed.). In any event, any period of inadmissibility is subject to waiver by the Attorney General, see §1182(a)(6)(B) (1994 ed.); §1182(a)(9)(A)(iii) (2000 ed.), and presumably Fernandez-Vargas could plead his serious case for such a waiver (his marriage, his child) in seeking legal reentry to the United States. Footnote 12 See 394 F. 3d, at 890, and n. 11 (distinguishing Fernandez-Vargas’s circumstance from that of aliens who had married, or both married and applied for adjustment of status, before IIRIRA’s effective date). Footnote 13 This is the nub of our disagreement with Justice Stevens. He says it misses the point to say that Fernandez-Vargas could avoid the new law by returning to Mexico, which he thinks is like saying that a defendant could avoid a retroactive criminal penalty by locking himself up for 10 years, post, at 5, n. 2. Justice Stevens thus argues that reimposing an order of removal to end illegal residence is like imposing a penalty for a completed act (the defendant’s unspecified act in his analogy). But even on his own analysis, Fernandez-Vargas continued to violate the law by remaining in this country day after day, and Justice Stevens does not deny that the United States was entitled to bring that continuing violation to an end. He says, however, that Congress should not be understood to provide that if the violation continues into the future it may be ended on terms less favorable than those at the beginning. But this is not the position that retroactivity doctrine imputes to an inexplicit Congress. Fernandez-Vargas may have an equitable argument that the Government should not, for the future, eliminate an opportunity for continuing illegality accompanied by the hopes that long illegal residence and a prospect of marriage gave him in the past. But Congress apparently did not accept such an argument, which could prevail here only if the presumption against retroactivity amounted to a presumption of legal stasis for the benefit of continuous lawbreakers.
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547.US.410
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Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the affidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrepresentations, Ceballos relayed his findings to his supervisors, petitioners here, and followed up with a disposition memorandum recommending dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then retaliated against him for his memo in violation of the First and Fourteenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The District Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. Reversing, the Ninth Circuit held that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461 U. S. 138. Held: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Pp. 5–14. (a) Two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See Pickering, supra, at 568. If the answer is no, the employee has no First Amendment cause of action based on the employer’s reaction to the speech. See Connick, supra, at 147. If the answer is yes, the possibility of a First Amendment claim arises. The question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, supra, at 568. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. Without a significant degree of control over its employees’ words and actions, a government employer would have little chance to provide public services efficiently. Cf. Connick, supra, at 143. Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations. On the other hand, a citizen who works for the government is nonetheless still a citizen. The First Amendment limits a public employer’s ability to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147. Pp. 5–8. (b) Proper application of the Court’s precedents leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail. The dispositive factor here is not that Ceballos expressed his views inside his office, rather than publicly, see, e.g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414, nor that the memo concerned the subject matter of his employment, see, e.g., Pickering, 391 U. S. at 573. Rather, the controlling factor is that Ceballos’ expressions were made pursuant to his official duties. That consideration distinguishes this case from those in which the First Amendment provides protection against discipline. Ceballos wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen by writing it. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833. This result is consistent with the Court’s prior emphasis on the potential societal value of employee speech and on affording government employers sufficient discretion to manage their operations. Ceballos’ proposed contrary rule, adopted by the Ninth Circuit, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in the Court’s precedents. The doctrinal anomaly the Court of Appeals perceived in compelling public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties misconceives the theoretical underpinnings of this Court’s decisions and is unfounded as a practical matter. Pp. 8–13. (c) Exposing governmental inefficiency and misconduct is a matter of considerable significance, and various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. These include federal and state whistle-blower protection laws and labor codes and, for government attorneys, rules of conduct and constitutional obligations apart from the First Amendment. However, the Court’s precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job. Pp. 13–14. 361 F. 3d 1168, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion.
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It is well settled that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U. S. 138, 142 (1983). The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties. I Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney’s Office. During the period relevant to this case, Ceballos was a calendar deputy in the office’s Pomona branch, and in this capacity he exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway. Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway’s composition in some places made it difficult or impossible to leave visible tire tracks. Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum. The memo explained Ceballos’ concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with another memo, this one describing a second telephone conversation between Ceballos and the warrant affiant. Based on Ceballos’ statements, a meeting was held to discuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff’s department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case. Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant. Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied based on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C. §1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo of March 2. Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such as staffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo’s contents. It held in the alternative that even if Ceballos’ speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established. The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.” 361 F. 3d 1168, 1173 (2004). In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and Connick, 461 U. S. 138. Connick instructs courts to begin by considering whether the expressions in question were made by the speaker “as a citizen upon matters of public concern.” See id., at 146–147. The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be governmental misconduct, was “inherently a matter of public concern.” 361 F. 3d, at 1174. The court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen. Rather, it relied on Circuit precedent rejecting the idea that “a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.” Id., at 1174–1175 (citing cases including Roth v. Veteran’s Admin. of Govt. of United States, 856 F. 2d 1401 (CA9 1988)). Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals proceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it. See Pickering, supra, at 568. The court struck the balance in Ceballos’ favor, noting that petitioners “failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office” as a result of the memo. See 361 F. 3d, at 1180. The court further concluded that Ceballos’ First Amendment rights were clearly established and that petitioners’ actions were not objectively reasonable. See id., at 1181–1182. Judge O’Scannlain specially concurred. Agreeing that the panel’s decision was compelled by Circuit precedent, he nevertheless concluded Circuit law should be revisited and overruled. See id., at 1185. Judge O’Scannlain emphasized the distinction “between speech offered by a public employee acting as an employee carrying out his or her ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.” Id., at 1187. In his view, “when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right.” Id., at 1189. We granted certiorari, 543 U. S. 1186 (2005), and we now reverse. II As the Court’s decisions have noted, for many years “the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Connick, 461 U. S., at 143. That dogma has been qualified in important respects. See id., at 144–145. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Pickering, supra, at 568; Connick, supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United States v. Treasury Employees, 513 U. S. 454, 466 (1995). Pickering provides a useful starting point in explaining the Court’s doctrine. There the relevant speech was a teacher’s letter to a local newspaper addressing issues including the funding policies of his school board. 391 U. S., at 566. “The problem in any case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id., at 568. The Court found the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Id., at 572–573 (footnote omitted). Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Id., at 573. Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id., at 568. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. See Connick, supra, at 147. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, 391 U. S., at 568. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations. To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of “the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors … to furnish grounds for dismissal.” Id., at 569. The Court’s overarching objectives, though, are evident. When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”). Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, supra, at 143 (“[G]overnment offices could not function if every employment decision became a constitutional matter”). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions. At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”). The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion. Pickering again provides an instructive example. The Court characterized its holding as rejecting the attempt of school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” 391 U. S., at 573. It also noted that teachers are “the members of a community most likely to have informed and definite opinions” about school expenditures. Id., at 572. The Court’s approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed. The Court’s more recent cases have expressed similar concerns. See, e.g., San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam) (“Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it” (citation omitted)); cf. Treasury Employees, 513 U. S., at 470 (“The large-scale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said”). The Court’s decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e.g., Rankin, 483 U. S., at 384 (recognizing “the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment”). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to “constitutionalize the employee grievance.” Connick, 461 U. S., at 154. III With these principles in mind we turn to the instant case. Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979). Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like “any member of the general public,” Pickering, 391 U. S., at 573, to hold that all speech within the office is automatically exposed to restriction. The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker’s job. See, e.g., ibid.; Givhan, supra, at 414. As the Court noted in Pickering: “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U. S., at 572. The same is true of many other categories of public employees. The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’ ”). That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995) (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes”). Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day. Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. This result is consistent with our precedents’ attention to the potential societal value of employee speech. See supra, at 7–8. Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit. Our holding likewise is supported by the emphasis of our precedents on affording government employers sufficient discretion to manage their operations. Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action. Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers. The Court of Appeals based its holding in part on what it perceived as a doctrinal anomaly. The court suggested it would be inconsistent to compel public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties. See 361 F. 3d, at 1176. This objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, 391 U. S. 563, or discussing politics with a co-worker, see Rankin, 483 U. S. 378. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees. The Court of Appeals’ concern also is unfounded as a practical matter. The perceived anomaly, it should be noted, is limited in scope: It relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints (such as those at issue in cases like Pickering and Connick) that are made outside the duties of employment. If, moreover, a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public. Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail. Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. See post, at 4, n. 2 (Souter, J., dissenting). The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes. Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. IV Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” 461 U. S., at 149. The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing. See, e.g., 5 U. S. C. §2302(b)(8); Cal. Govt. Code Ann. §8547.8 (West 2005); Cal. Lab. Code Ann. §1102.5 (West Supp. 2006). Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. See, e.g., Cal. Rule Prof. Conduct 5–110 (2005) (“A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause”); Brady v. Maryland, 373 U. S. 83 (1963). These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
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547.US.103
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Respondent’s estranged wife gave police permission to search the marital residence for items of drug use after respondent, who was also present, had unequivocally refused to give consent. Respondent was indicted for possession of cocaine, and the trial court denied his motion to suppress the evidence as products of a warrantless search unauthorized by consent. The Georgia Court of Appeals reversed. In affirming, the State Supreme Court held that consent given by one occupant is not valid in the face of the refusal of another physically present occupant, and distinguished United States v. Matlock, 415 U. S. 164, which recognized the permissibility of an entry made with the consent of one co-occupant in the other’s absence. Held: In the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. Pp. 4–19. (a) The Fourth Amendment recognizes a valid warrantless entry and search of a premises when the police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, common authority over the property, and no present co-tenant objects. Matlock, supra, at 170; Illinois v. Rodriguez, 497 U. S. 177, 186. The constant element in assessing Fourth Amendment reasonableness in such cases is the great significance given to widely shared social expectations, which are influenced by property law but not controlled by its rules. Thus, Matlock not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but also stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understandings about the authority that co-inhabitants may exercise in ways that affect each other’s interests. Pp. 4–6. (b) Matlock’s example of common understanding is readily apparent. The assumption tenants usually make about their common authority when they share quarters is that any one of them may admit visitors, with the consequence that a guest obnoxious to one may be admitted in his absence. Matlock placed no burden on the police to eliminate the possibility of atypical arrangements, absent reason to doubt that the regular scheme was in place. Pp. 6–8. (c) This Court took a step toward addressing the issue here when it held in Minnesota v. Olson, 495 U. S. 91, that overnight houseguests have a legitimate expectation of privacy in their temporary quarters. If that customary expectation is a foundation of a houseguest’s Fourth Amendment rights, it should follow that an inhabitant of shared premises may claim at least as much. In fact, a co-inhabitant naturally has an even stronger claim. No sensible person would enter shared premises based on one occupant’s invitation when a fellow tenant said to stay out. Such reticence would show not timidity but a realization that when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation, not by appeals to authority. Absent some recognized hierarchy, e.g., parent and child, there is no societal or legal understanding of superior and inferior as between co-tenants. Pp. 8–10. (d) Thus, a disputed invitation, without more, gives an officer no better claim to reasonableness in entering than the officer would have absent any consent. Disputed permission is no match for the Fourth Amendment central value of “respect for the privacy of the home,” Wilson v. Layne, 526 U. S. 603, 610, and the State’s other countervailing claims do not add up to outweigh it. A co-tenant who has an interest in bringing criminal activity to light or in deflecting suspicion from himself can, e.g., tell the police what he knows, for use before a magistrate in getting a warrant. This case, which recognizes limits on evidentiary searches, has no bearing on the capacity of the police, at the invitation of one tenant, to enter a dwelling over another tenant’s objection in order to protect a resident from domestic violence. Though alternatives to disputed consent will not always open the door to search for evidence that the police suspect is inside, nothing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. Pp. 10–16. (e) There are two loose ends. First, while Matlock’s explanation for the constitutional sufficiency of a co-tenant’s consent to enter and search recognized a co-inhabitant’s “right to permit the inspection in his own right,” 415 U. S., at 171, n. 7, the right to admit the police is not a right as understood under property law. It is, instead, the authority recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness in specific circumstances. The question here is whether customary social understanding accords the consenting tenant authority to prevail over the co-tenant’s objection, a question Matlock did not answer. Second, a fine line must be drawn to avoid undercutting Matlock—where the defendant, though not present, was in a squad car not far away—and Rodriguez—where the defendant was asleep in the apartment and could have been roused by a knock on the door; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not part of the threshold colloquy, loses out. Such formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance specifically to avoid a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when no fellow occupant is on hand, the other according dispositive weight to the fellow occupant’s expressed contrary indication. Pp. 16–18. (f) Here, respondent’s refusal is clear, and nothing in the record justifies the search on grounds independent of his wife’s consent. Pp. 18–19. 278 Ga. 614, 604 S. E. 2d 835, affirmed. Souter, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. Stevens, J., and Breyer, J., filed concurring opinions. Roberts, C. J., filed a dissenting opinion, in which Scalia, J., joined. Scalia, J., and Thomas, J., filed dissenting opinions. Alito, J., took no part in the consideration or decision of the case.
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The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U. S. 177 (1990); United States v. Matlock, 415 U. S. 164 (1974). The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. I Respondent Scott Randolph and his wife, Janet, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child, though the record does not reveal whether her object was reconciliation or retrieval of remaining possessions. On the morning of July 6, she complained to the police that after a domestic dispute her husband took their son away, and when officers reached the house she told them that her husband was a cocaine user whose habit had caused financial troubles. She mentioned the marital problems and said that she and their son had only recently returned after a stay of several weeks with her parents. Shortly after the police arrived, Scott Randolph returned and explained that he had removed the child to a neighbor’s house out of concern that his wife might take the boy out of the country again; he denied cocaine use, and countered that it was in fact his wife who abused drugs and alcohol. One of the officers, Sergeant Murray, went with Janet Randolph to reclaim the child, and when they returned she not only renewed her complaints about her husband’s drug use, but also volunteered that there were “ ‘items of drug evidence’ ” in the house. Brief for Petitioner 3. Sergeant Murray asked Scott Randolph for permission to search the house, which he unequivocally refused. The sergeant turned to Janet Randolph for consent to search, which she readily gave. She led the officer upstairs to a bedroom that she identified as Scott’s, where the sergeant noticed a section of a drinking straw with a powdery residue he suspected was cocaine. He then left the house to get an evidence bag from his car and to call the district attorney’s office, which instructed him to stop the search and apply for a warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent. The police took the straw to the police station, along with the Randolphs. After getting a search warrant, they returned to the house and seized further evidence of drug use, on the basis of which Scott Randolph was indicted for possession of cocaine. He moved to suppress the evidence, as products of a warrantless search of his house unauthorized by his wife’s consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had common authority to consent to the search. The Court of Appeals of Georgia reversed, 264 Ga. App. 396, 590 S. E. 2d 834 (2003), and was itself sustained by the State Supreme Court, principally on the ground that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.” 278 Ga. 614, 604 S. E. 2d 835, 836 (2004). The Supreme Court of Georgia acknowledged this Court’s holding in Matlock, 415 U. S. 164, that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared,” id., at 170, and found Matlock distinguishable just because Scott Randolph was not “absent” from the colloquy on which the police relied for consent to make the search. The State Supreme Court stressed that the officers in Matlock had not been “faced with the physical presence of joint occupants, with one consenting to the search and the other objecting.” 278 Ga., at 615, 604 S. E. 2d, at 837. It held that an individual who chooses to live with another assumes a risk no greater than “ ‘an inability to control access to the premises during [his] absence,’ ” ibid. (quoting 3 W. LaFave, Search and Seizure §8.3(d), p. 731 (3d ed. 1996) (hereinafter LaFave)), and does not contemplate that his objection to a request to search commonly shared premises, if made, will be overlooked. We granted certiorari to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.[Footnote 1] 544 U. S. 973 (2005). We now affirm. II To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se, Payton v. New York, 445 U. S. 573, 586 (1980); Coolidge v. New Hampshire, 403 U. S. 443, 454–455 (1971), one “jealously and carefully drawn” exception, Jones v. United States, 357 U. S. 493, 499 (1958), recognizes the validity of searches with the voluntary consent of an individual possessing authority, Rodriguez, 497 U. S., at 181. That person might be the householder against whom evidence is sought, Schneckloth v. Bustamonte, 412 U. S. 218, 222 (1973), or a fellow occupant who shares common authority over property, when the suspect is absent, Matlock, supra, at 170, and the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant, Rodriguez, supra, at 186. None of our co-occupant consent-to-search cases, however, has presented the further fact of a second occupant physically present and refusing permission to search, and later moving to suppress evidence so obtained.[Footnote 2] The significance of such a refusal turns on the underpinnings of the co-occupant consent rule, as recognized since Matlock. A The defendant in that case was arrested in the yard of a house where he lived with a Mrs. Graff and several of her relatives, and was detained in a squad car parked nearby. When the police went to the door, Mrs. Graff admitted them and consented to a search of the house. 415 U. S., at 166. In resolving the defendant’s objection to use of the evidence taken in the warrantless search, we said that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Id., at 170. Consistent with our prior understanding that Fourth Amendment rights are not limited by the law of property, cf. Katz v. United States, 389 U. S. 347, 352–353 (1967), we explained that the third party’s “common authority” is not synonymous with a technical property interest: “The authority which justified the third-party consent does not rest upon the law of property, with its attendant historical and legal refinement, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” 415 U. S., at 171, n. 7 (citations omitted). See also Frazier v. Cupp, 394 U. S. 731, 740 (1969) (“[I]n allowing [his cousin to share use of a duffel bag] and in leaving it in his house, [the suspect] must be taken to have assumed the risk that [the cousin] would allow someone else to look inside”). The common authority that counts under the Fourth Amendment may thus be broader than the rights accorded by property law, see Rodriguez, supra, at 181–182 (consent is sufficient when given by a person who reasonably appears to have common authority but who, in fact, has no property interest in the premises searched), although its limits, too, reflect specialized tenancy arrangements apparent to the police, see Chapman v. United States, 365 U. S. 610 (1961) (landlord could not consent to search of tenant’s home). The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules. Cf. Rakas v. Illinois, 439 U. S. 128, 144, n. 12 (1978) (an expectation of privacy is reasonable if it has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”). Matlock accordingly not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other’s interests. B Matlock’s example of common understanding is readily apparent. When someone comes to the door of a domestic dwelling with a baby at her hip, as Mrs. Graff did, she shows that she belongs there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters. They understand that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another. As Matlock put it, shared tenancy is understood to include an “assumption of risk,” on which police officers are entitled to rely, and although some group living together might make an exceptional arrangement that no one could admit a guest without the agreement of all, the chance of such an eccentric scheme is too remote to expect visitors to investigate a particular household’s rules before accepting an invitation to come in. So, Matlock relied on what was usual and placed no burden on the police to eliminate the possibility of atypical arrangements, in the absence of reason to doubt that the regular scheme was in place. It is also easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant. See Chapman v. United States, supra (landlord); Stoner v. California, 376 U. S. 483 (1964) (hotel manager). A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, Chapman, supra, at 617, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room, see Stoner, supra, at 489; see also United States v. Jeffers, 342 U. S. 48, 51 (1951) (hotel staff had access to room for purposes of cleaning and maintenance, but no authority to admit police). In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises. And when it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on premises as an occupant may lack any perceived authority to consent; “a child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller, such as a pollster or salesman, might well be admitted,” 4 LaFave §8.4(c), at 207 (4th ed. 2004), but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom. C Although we have not dealt directly with the reasonableness of police entry in reliance on consent by one occupant subject to immediate challenge by another, we took a step toward the issue in an earlier case dealing with the Fourth Amendment rights of a social guest arrested at premises the police entered without a warrant or the benefit of any exception to the warrant requirement. Minnesota v. Olson, 495 U. S. 91 (1990), held that overnight houseguests have a legitimate expectation of privacy in their temporary quarters because “it is unlikely that [the host] will admit someone who wants to see or meet with the guest over the objection of the guest,” id., at 99. If that customary expectation of courtesy or deference is a foundation of Fourth Amendment rights of a houseguest, it presumably should follow that an inhabitant of shared premises may claim at least as much, and it turns out that the co-inhabitant naturally has an even stronger claim. To begin with, it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.” Without some very good reason, no sensible person would go inside under those conditions. Fear for the safety of the occupant issuing the invitation, or of someone else inside, would be thought to justify entry, but the justification then would be the personal risk, the threats to life or limb, not the disputed invitation.[Footnote 3] The visitor’s reticence without some such good reason would show not timidity but a realization that when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation, not by appeals to authority. Unless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior, a fact reflected in a standard formulation of domestic property law, that “[e]ach cotenant . . . has the right to use and enjoy the entire property as if he or she were the sole owner, limited only by the same right in the other cotenants.” 7 R. Powell, Powell on Real Property §50.03[1], p. 50–14 (M. Wolf gen. ed. 2005). The want of any recognized superior authority among disagreeing tenants is also reflected in the law’s response when the disagreements cannot be resolved. The law does not ask who has the better side of the conflict; it simply provides a right to any co-tenant, even the most unreasonable, to obtain a decree partitioning the property (when the relationship is one of co-ownership) and terminating the relationship. See, e.g., 2 H. Tiffany, Real Property §§468, 473, 474, pp. 297, 307–309 (3d ed. 1939 and 2006 Cum. Supp.). And while a decree of partition is not the answer to disagreement among rental tenants, this situation resembles co-ownership in lacking the benefit of any understanding that one or the other rental co-tenant has a superior claim to control the use of the quarters they occupy together. In sum, there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders. D Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. Accordingly, in the balancing of competing individual and governmental interests entailed by the bar to unreasonable searches, Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 536–537 (1967), the cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place. Since we hold to the “centuries-old principle of respect for the privacy of the home,” Wilson v. Layne, 526 U. S. 603, 610 (1999), “it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people,” Minnesota v. Carter, 525 U. S. 83, 99 (1998) (Kennedy, J., concurring). We have, after all, lived our whole national history with an understanding of “the ancient adage that a man’s home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,” Miller v. United States, 357 U. S. 301, 307 (1958) (internal quotation marks omitted).[Footnote 4] Disputed permission is thus no match for this central value of the Fourth Amendment, and the State’s other countervailing claims do not add up to outweigh it.[Footnote 5] Yes, we recognize the consenting tenant’s interest as a citizen in bringing criminal activity to light, see Coolidge, 403 U. S., at 488 (“[I]t is no part of the policy underlying the Fourth … Amendmen[t] to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals”). And we understand a co-tenant’s legitimate self-interest in siding with the police to deflect suspicion raised by sharing quarters with a criminal, see 4 LaFave §8.3(d), at 162, n. 72 (“The risk of being convicted of possession of drugs one knows are present and has tried to get the other occupant to remove is by no means insignificant”); cf. Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). But society can often have the benefit of these interests without relying on a theory of consent that ignores an inhabitant’s refusal to allow a warrantless search. The co-tenant acting on his own initiative may be able to deliver evidence to the police, Coolidge, supra, at 487–489 (suspect’s wife retrieved his guns from the couple’s house and turned them over to the police), and can tell the police what he knows, for use before a magistrate in getting a warrant.[Footnote 6] The reliance on a co-tenant’s information instead of disputed consent accords with the law’s general partiality toward “police action taken under a warrant [as against] searches and seizures without one,” United States v. Ventresca, 380 U. S. 102, 107 (1965); “the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers,” United States v. Lefkowitz, 285 U. S. 452, 464 (1932). Nor should this established policy of Fourth Amendment law be undermined by the principal dissent’s claim that it shields spousal abusers and other violent co-tenants who will refuse to allow the police to enter a dwelling when their victims ask the police for help, post, at 12 (opinion of Roberts, C. J.) (hereinafter the dissent). It is not that the dissent exaggerates violence in the home; we recognize that domestic abuse is a serious problem in the United States. See U. S. Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Full Report of the Prevalence, Incidence, and Consequence of Violence Against Women 25–26 (2000) (noting that over 20 million women and 6 million men will, in the course of their lifetimes, be the victims of intimate-partner abuse); U. S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States 19 (2003) (finding that nearly 5.3 million intimate partner victimizations, which result in close to 2 million injuries and 1300 deaths, occur among women in the United States each year); U. S. Dept. of Justice, Bureau of Justice Statistics, Crime Data Brief, C. Rennison, Intimate Partner Violence, 1993–2001 (Feb. 2003) (noting that in 2001 intimate partner violence made up 20% of violent crime against women); see also Becker, The Politics of Women’s Wrongs and the Bill of “Rights”: A Bicentennial Perspective, 59 U. Chi. L. Rev. 454, 507–508 (1992) (noting that women may feel physical insecurity in their homes as a result of abuse from domestic partners). But this case has no bearing on the capacity of the police to protect domestic victims. The dissent’s argument rests on the failure to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence. No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any consequent probable cause, see Texas v. Brown, 460 U. S. 730, 737–739 (1983) (plurality opinion).) Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes. See 4 LaFave §8.3(d), at 161 (“[E]ven when . . . two persons quite clearly have equal rights in the place, as where two individuals are sharing an apartment on an equal basis, there may nonetheless sometimes exist a basis for giving greater recognition to the interests of one over the other. . . . [W]here the defendant has victimized the third-party . . . the emergency nature of the situation is such that the third-party consent should validate a warrantless search despite defendant’s objections” (internal quotation marks omitted; third omission in original)). The undoubted right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one co-tenant is good against another, standing at the door and expressly refusing consent.[Footnote 7] None of the cases cited by the dissent support its improbable view that recognizing limits on merely evidentiary searches would compromise the capacity to protect a fearful occupant. In the circumstances of those cases, there is no danger that the fearful occupant will be kept behind the closed door of the house simply because the abusive tenant refuses to consent to a search. See United States v. Donlin, 982 F. 2d 31, 32 (CA1 1992) (victimized individual was already outside of her apartment when police arrived and, for all intents and purposes, within the protective custody of law enforcement officers); United States v. Hendrix, 595 F. 2d 883, 885–886 (CADC 1979) (per curiam) (even if the consent of the threatened co-occupant did not justify a warrantless search, the police entry was nevertheless allowable on exigent-circumstances grounds); People v. Sanders, 904 P. 2d 1311, 1313–1315 (Colo. 1995) (victimized individual gave her consent-to-search away from her home and was not present at the time of the police visit; alternatively, exigent circumstances existed to satisfy the warrantless exception); Brandon v. State, 778 P. 2d 221, 223–224 (Alaska App. 1989) (victimized individual consented away from her home and was not present at the time of the police visit); United States v. Davis, 290 F. 3d 1239, 1241 (CA10 2002) (immediate harm extinguished after husband “order[ed]” wife out of the home). The dissent’s red herring aside, we know, of course, that alternatives to disputed consent will not always open the door to search for evidence that the police suspect is inside. The consenting tenant may simply not disclose enough information, or information factual enough, to add up to a showing of probable cause, and there may be no exigency to justify fast action. But nothing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.[Footnote 8] E There are two loose ends, the first being the explanation given in Matlock for the constitutional sufficiency of a co-tenant’s consent to enter and search: it “rests … on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right … .” 415 U. S., at 171, n. 7. If Matlock’s co-tenant is giving permission “in his own right,” how can his “own right” be eliminated by another tenant’s objection? The answer appears in the very footnote from which the quoted statement is taken: the “right” to admit the police to which Matlock refers is not an enduring and enforceable ownership right as understood by the private law of property, but is instead the authority recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness in specific circumstances. Thus, to ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection. The Matlock Court did not purport to answer this question, a point made clear by another statement (which the dissent does not quote): the Court described the co-tenant’s consent as good against “the absent, nonconsenting” resident.” Id., at 170. The second loose end is the significance of Matlock and Rodriguez after today’s decision. Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with only the consent of an apparent co-tenant. If those cases are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received. There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector. Better to accept the formalism of distinguishing Matlock from this case than to impose a requirement, time-consuming in the field and in the courtroom, with no apparent systemic justification. The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent,[Footnote 9] albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion. III This case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph’s refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph’s consent. The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained. The judgment of the Supreme Court of Georgia is therefore affirmed. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 All four Courts of Appeals to have considered this question have concluded that consent remains effective in the face of an express objection. See United States v. Morning, 64 F. 3d 531, 533–536 (CA9 1995); United States v. Donlin, 982 F. 2d 31, 33 (CA1 1992); United States v. Hendrix, 595 F. 2d 883, 885 (CADC 1979) (per curiam); United States v. Sumlin, 567 F. 2d 684, 687–688 (CA6 1977). Of the state courts that have addressed the question, the majority have reached that conclusion as well. See, e.g., Love v. State, 355 Ark. 334, 342, 138 S. W. 3d 676, 680 (2003); Laramie v. Hysong, 808 P. 2d 199, 203–205 (Wyo. 1991); but cf. State v. Leach, 113 Wash. 2d 735, 744, 782 P. 2d 1035, 1040 (1989) (en banc) (requiring consent of all present co-occupants). Footnote 2 Mindful of the multiplicity of living arrangements, we vary the terms used to describe residential co-occupancies. In so doing we do not mean, however, to suggest that the rule to be applied to them is similarly varied. Footnote 3 Cf. Mincey v. Arizona, 437 U. S. 385, 393 (1978) (acknowledging the right of police to respond to emergency situations “threatening life or limb” and indicating that police may conduct a warrantless search provided that the search is “ ‘strictly circumscribed by the exigencies which justify its initiation’ ”). Footnote 4 In the dissent’s view, the centuries of special protection for the privacy of the home are over. The principal dissent equates inviting the police into a co-tenant’s home over his contemporaneous objection with reporting a secret, post, at 13–14 (opinion of Roberts, C. J.), and the emphasis it places on the false equation suggests a deliberate intent to devalue the importance of the privacy of a dwelling place. The same attitude that privacy of a dwelling is not special underlies the dissent’s easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police. Post, at 5. Footnote 5 A generalized interest in expedient law enforcement cannot, without more, justify a warrantless search. See Mincey, supra, at 393 (“[T]he privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law”); Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971) (“The warrant requirement … is not an inconvenience to be somehow ‘weighed’ against the claims of police efficiency”). Footnote 6 Sometimes, of course, the very exchange of information like this in front of the objecting inhabitant may render consent irrelevant by creating an exigency that justifies immediate action on the police’s part; if the objecting tenant cannot be incapacitated from destroying easily disposable evidence during the time required to get a warrant, see Illinois v. McArthur, 531 U. S. 326, 331–332 (2001) (denying suspect access to his trailer home while police applied for a search warrant), a fairly perceived need to act on the spot to preserve evidence may justify entry and search under the exigent circumstances exception to the warrant requirement, cf. Schmerber v. California, 384 U. S. 757, 770–771 (1966) (warrantless search permitted when “the delay necessary to obtain a warrant … threatened the destruction of evidence” (internal quotation marks omitted)). Additional exigent circumstances might justify warrantless searches. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298 (1967) (hot pursuit); Chimel v. California, 395 U. S. 752 (1969) (protecting the safety of the police officers); Michigan v. Tyler, 436 U. S. 499 (1978) (imminent destruction to building); Johnson v. United States, 333 U. S. 10, 15 (1948) (likelihood that suspect will imminently flee). Footnote 7 We understand the possibility that a battered individual will be afraid to express fear candidly, but this does not seem to be a reason to think such a person would invite the police into the dwelling to search for evidence against another. Hence, if a rule crediting consent over denial of consent were built on hoping to protect household victims, it would distort the Fourth Amendment with little, if any, constructive effect on domestic abuse investigations. Footnote 8 The dissent is critical that our holding does not pass upon the constitutionality of such a search as to a third tenant against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another, post, at 11. We decide the case before us, not a different one. Footnote 9 See 4 LaFave §8.1, at 4 (“The so-called consent search is frequently relied upon by police as a means of investigating suspected criminal conduct” (footnote omitted)); Strauss, Reconstructing Consent, 92 J. Crim. L. & C. 211, 214 (2001–2002) (“Although precise figures detailing the number of searches conducted pursuant to consent are not—and probably can never be—available, there is no dispute that these type of searches affect tens of thousands, if not hundreds of thousands, of people every year” (footnote omitted)).
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546.US.418
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Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, where, in upholding a generally applicable law that burdened the sacramental use of peyote, this Court held that the First Amendment’s Free Exercise Clause does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws, id., at 883–890. Among other things, RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability,” 42 U. S. C. §2000bb–1(a), except when the Government can “demonstrat[e] that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that … interest,” §2000bb–1(b). Members of respondent church (UDV) receive communion by drinking hoasca, a tea brewed from plants unique to the Amazon Rainforest that contains DMT, a hallucinogen regulated under Schedule I of the Controlled Substances Act, see 21 U. S. C. §812(c), Schedule I(c). After U. S. Customs inspectors seized a hoasca shipment to the American UDV and threatened prosecution, the UDV filed this suit for declaratory and injunctive relief, alleging, inter alia, that applying the Controlled Substances Act to the UDV’s sacramental hoasca use violates RFRA. At a hearing on the UDV’s preliminary injunction motion, the Government conceded that the challenged application would substantially burden a sincere exercise of religion, but argued that this burden did not violate RFRA because applying the Controlled Substances Act was the least restrictive means of advancing three compelling governmental interests: protecting UDV members’ health and safety, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances. The District Court granted relief, concluding that, because the parties’ evidence on health risks and diversion was equally balanced, the Government had failed to demonstrate a compelling interest justifying the substantial burden on the UDV. The court also held that the 1971 Convention does not apply to hoasca. The Tenth Circuit affirmed. Held: The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca. Pp. 6–19. 1. This Court rejects the Government’s argument that evidentiary equipoise as to potential harm and diversion is an insufficient basis for a preliminary injunction against enforcement of the Controlled Substances Act. Given that the Government conceded the UDV’s prima facie RFRA case in the District Court and that the evidence found to be in equipoise related to an affirmative defense as to which the Government bore the burden of proof, the UDV effectively demonstrated a likelihood of success on the merits. The Government’s argument that, although it would bear the burden of demonstrating a compelling interest at trial on the merits, the UDV should have borne the burden of disproving such interests at the preliminary injunction hearing is foreclosed by Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666. There, in affirming the grant of a preliminary injunction against the Government, this Court reasoned that the burdens with respect to the compelling interest test at the preliminary injunction stage track the burdens at trial. The Government’s attempt to limit the Ashcroft rule to content-based restrictions on speech is unavailing. The fact that Ashcroft involved such a restriction in no way affected the Court’s assessment of the consequences of having the burden at trial for preliminary injunction purposes. Congress’ express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same way as the test’s constitutionally mandated applications, including at the preliminary injunction stage. Pp. 6–8. 2. Also rejected is the Government’s central submission that, because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the DMT ban can be made to accommodate the UDV. The Government argues, inter alia, that the Act’s description of Schedule I substances as having “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use … under medical supervision,” 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions, and that the Act’s “closed” regulatory system, which prohibits all use of controlled substances except as the Act itself authorizes, see Gonzales v. Raich, 545 U. S. ___, ___, cannot function properly if subjected to judicial exemptions. Pp. 8–16. (a) RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b). Section 2000bb(b)(1) expressly adopted the compelling interest test of Sherbert v. Verner, 374 U. S. 398, and Wisconsin v. Yoder, 406 U. S. 205. There, the Court looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants. Id., at 213, 221, 236; Sherbert, supra, at 410. Outside the Free Exercise area as well, the Court has noted that “[c]ontext matters” in applying the compelling interest test, Grutter v. Bollinger, 539 U. S. 306, 327, and has emphasized that strict scrutiny’s fundamental purpose is to take “relevant differences” into account, Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 228. Pp. 9–10. (b) Under RFRA’s more focused inquiry, the Government’s mere invocation of the general characteristics of Schedule I substances cannot carry the day. Although Schedule I substances such as DMT are exceptionally dangerous, see, e.g., Touby v. United States, 500 U. S. 160, 162, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue. That question was litigated below. Before the District Court found that the Government had not carried its burden of showing a compelling interest in preventing such harm, the court noted that it could not ignore the congressional classification and findings. But Congress’ determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its RFRA burden. The Controlled Substances Act’s authorization to the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety,” 21 U. S. C. §822(d), reinforces that Congress’ findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. Indeed, despite the fact that everything the Government says about the DMT in hoasca applies in equal measure to the mescaline in peyote, another Schedule I substance, both the Executive and Congress have decreed an exception from the Controlled Substances Act for Native American religious use of peyote, see 21 CFR §1307.31; 42 U. S. C. §1996a(b)(1). If such use is permitted in the face of the general congressional findings for hundreds of thousands of Native Americans practicing their faith, those same findings alone cannot preclude consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547. The Government’s argument that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions fails because RFRA plainly contemplates court-recognized exceptions, see §2000bb–1(c). Pp. 11–13. (c) The peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The peyote exception has been in place since the Controlled Substances Act’s outset, and there is no evidence that it has undercut the Government’s ability to enforce the ban on peyote use by non-Indians. The Government’s reliance on pre-Smith cases asserting a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause is unavailing. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise, but instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. See, e.g., United States v. Lee, 455 U. S. 252, 258, 260. They show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program. Here the Government’s uniformity argument rests not so much on the particular statutory program at issue as on slippery slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law, i.e., “if I make an exception for you, I’ll have to make one for everybody, so no exceptions.” But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” §2000bb–1(a). Congress’ determination that the legislated test is “workable … for striking sensible balances between religious liberty and competing prior governmental interests,” §200bb(a)(5), finds support in Sherbert, supra, at 407, and Cutter v. Wilkinson, 544 U. S. ___, ___. While there may be instances where a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA, it would be surprising to find that this was such a case, given the longstanding peyote exemption and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. The Government has not shown that granting the UDV an exemption would cause the kind of administrative harm recognized as a compelling interest in, e.g., Lee. It cannot now compensate for its failure to convince the District Court as to its health or diversion concerns with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act. Pp. 13–16. 3. The Government argues unpersuasively that it has a compelling interest in complying with the 1971 U. N. Convention. While this Court does not agree with the District Court that the Convention does not cover hoasca, that does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use. At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting the UDV an exemption, but simply relied on two affidavits by State Department officials attesting to the general (and undoubted) importance of honoring international obligations and maintaining the United States’ leadership in the international war on drugs. Under RFRA, invocation of such general interests, standing alone, is not enough. Pp. 16–18. 389 F. 3d 973, affirmed and remanded. Roberts, C. J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
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A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. The sect sued to block enforcement against it of the ban on the sacramental tea, and moved for a preliminary injunction. It relied on the Religious Freedom Restoration Act of 1993, which prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government “demonstrates that application of the burden to the person” represents the least restrictive means of advancing a compelling interest. 42 U. S. C. §2000bb–1(b). The District Court granted the preliminary injunction, and the Court of Appeals affirmed. We granted the Government’s petition for certiorari. Before this Court, the Government’s central submission is that it has a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice. We conclude that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act, and affirm the grant of the preliminary injunction. I In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), this Court held that the Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws. In Smith, we rejected a challenge to an Oregon statute that denied unemployment benefits to drug users, including Native Americans engaged in the sacramental use of peyote. Id., at 890. In so doing, we rejected the interpretation of the Free Exercise Clause announced in Sherbert v. Verner, 374 U. S. 398 (1963), and, in accord with earlier cases, see Smith, 494 U. S., at 879–880, 884–885, held that the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws. Id., at 883–890. Congress responded by enacting the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, as amended, 42 U. S. C. §2000bb et seq., which adopts a statutory rule comparable to the constitutional rule rejected in Smith. Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” §2000bb–1(a). The only exception recognized by the statute requires the Government to satisfy the compelling interest test—to “demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b). A person whose religious practices are burdened in violation of RFRA “may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.” §2000bb–1(c).[Footnote 1] The Controlled Substances Act, 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq. (2000 ed. and Supp. I), regulates the importation, manufacture, distribution, and use of psychotropic substances. The Act classifies substances into five schedules based on their potential for abuse, the extent to which they have an accepted medical use, and their safety. See §812(b) (2000 ed.). Substances listed in Schedule I of the Act are subject to the most comprehensive restrictions, including an outright ban on all importation and use, except pursuant to strictly regulated research projects. See §§823, 960(a)(1). The Act authorizes the imposition of a criminal sentence for simple possession of Schedule I substances, see §844(a), and mandates the imposition of a criminal sentence for possession “with intent to manufacture, distribute, or dispense” such substances, see §§841(a), (b). O Centro Espírita Beneficente Uniăo do Vegetal (UDV) is a Christian Spiritist sect based in Brazil, with an American branch of approximately 130 individuals. Central to the UDV’s faith is receiving communion through hoasca (pronounced “wass-ca”), a sacramental tea made from two plants unique to the Amazon region. One of the plants, psychotria viridis, contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsis caapi. DMT, as well as “any material, compound, mixture, or preparation, which contains any quantity of [DMT],” is listed in Schedule I of the Controlled Substances Act. §812(c), Schedule I(c). In 1999, United States Customs inspectors intercepted a shipment to the American UDV containing three drums of hoasca. A subsequent investigation revealed that the UDV had received 14 prior shipments of hoasca. The inspectors seized the intercepted shipment and threatened the UDV with prosecution. The UDV filed suit against the Attorney General and other federal law enforcement officials, seeking declaratory and injunctive relief. The complaint alleged, inter alia, that applying the Controlled Substances Act to the UDV’s sacramental use of hoasca violates RFRA. Prior to trial, the UDV moved for a preliminary injunction, so that it could continue to practice its faith pending trial on the merits. At a hearing on the preliminary injunction, the Government conceded that the challenged application of the Controlled Substances Act would substantially burden a sincere exercise of religion by the UDV. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1252 (NM 2002). The Government argued, however, that this burden did not violate RFRA, because applying the Controlled Substances Act in this case was the least restrictive means of advancing three compelling governmental interests: protecting the health and safety of UDV members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances, a treaty signed by the United States and implemented by the Act. Feb. 21, 1971, [1979–1980], 32 U. S. T. 543, T. I. A. S. No. 9725. See 282 F. Supp. 2d, at 1252–1253. The District Court heard evidence from both parties on the health risks of hoasca and the potential for diversion from the church. The Government presented evidence to the effect that use of hoasca, or DMT more generally, can cause psychotic reactions, cardiac irregularities, and adverse drug interactions. The UDV countered by citing studies documenting the safety of its sacramental use of hoasca and presenting evidence that minimized the likelihood of the health risks raised by the Government. With respect to diversion, the Government pointed to a general rise in the illicit use of hallucinogens, and cited interest in the illegal use of DMT and hoasca in particular; the UDV emphasized the thinness of any market for hoasca, the relatively small amounts of the substance imported by the church, and the absence of any diversion problem in the past. The District Court concluded that the evidence on health risks was “in equipoise,” and similarly that the evidence on diversion was “virtually balanced.” Id., at 1262, 1266. In the face of such an even showing, the court reasoned that the Government had failed to demonstrate a compelling interest justifying what it acknowledged was a substantial burden on the UDV’s sincere religious exercise. Id., at 1255. The court also rejected the asserted interest in complying with the 1971 Convention on Psychotropic Substances, holding that the Convention does not apply to hoasca. Id., at 1266–1269. The court entered a preliminary injunction prohibiting the Government from enforcing the Controlled Substances Act with respect to the UDV’s importation and use of hoasca. The injunction requires the church to import the tea pursuant to federal permits, to restrict control over the tea to persons of church authority, and to warn particularly susceptible UDV members of the dangers of hoasca. See Preliminary Injunction ¶¶2, 5–12, 32–33, App. F to App. to Pet. for Cert. 249a, 250a–252a, 258a–259a. The injunction also provides that “if [the Government] believe[s] that evidence exists that hoasca has negatively affected the health of UDV members,” or “that a shipment of hoasca contain[s] particularly dangerous levels of DMT, [the Government] may apply to the Court for an expedited determination of whether the evidence warrants suspension or revocation of [the UDV’s authority to use hoasca].” Id., at 257a, ¶29. The Government appealed the preliminary injunction and a panel of the Court of Appeals for the Tenth Circuit affirmed, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F. 3d 1170 (2003), as did a majority of the Circuit sitting en banc, 389 F. 3d 973 (2004). We granted certiorari. 544 U. S. 973 (2005). II Although its briefs contain some discussion of the potential for harm and diversion from the UDV’s use of hoasca, the Government does not challenge the District Court’s factual findings or its conclusion that the evidence submitted on these issues was evenly balanced. Instead, the Government maintains that such evidentiary equipoise is an insufficient basis for issuing a preliminary injunction against enforcement of the Controlled Substances Act. We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion. See McCreary County v. American Civil Liberties Union, 545 U. S. ___ , ___ (2005) (slip op., at 19). The Government begins by invoking the well-established principle that the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits. See, e.g., Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam); Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975). The Government argues that the District Court lost sight of this principle in issuing the injunction based on a mere tie in the evidentiary record. A majority of the en banc Court of Appeals rejected this argument, and so do we. Before the District Court, the Government conceded the UDV’s prima facie case under RFRA. See 282 F. Supp. 2d, at 1252 (application of the Controlled Substances Act would (1) substantially burden (2) a sincere (3) religious exercise). The evidence the District Court found to be in equipoise related to two of the compelling interests asserted by the Government, which formed part of the Government’s affirmative defense. See 42 U. S. C. §2000bb–1(b) (“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling government interest …” (emphasis added)); §2000bb–2(3) (“[T]he term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion”). Accordingly, the UDV effectively demonstrated that its sincere exercise of religion was substantially burdened, and the Government failed to demonstrate that the application of the burden to the UDV would, more likely than not, be justified by the asserted compelling interests. See 389 F. 3d, at 1009 (Seymour, J., concurring in part and dissenting in part) (“[T]he balance is between actual irreparable harm to [the] plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence”). The Government argues that, although it would bear the burden of demonstrating a compelling interest as part of its affirmative defense at trial on the merits, the UDV should have borne the burden of disproving the asserted compelling interests at the hearing on the preliminary injunction. This argument is foreclosed by our recent decision in Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004). In Ashcroft, we affirmed the grant of a preliminary injunction in a case where the Government had failed to show a likelihood of success under the compelling interest test. We reasoned that “[a]s the Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, respondents [the movants] must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than [enforcing the Act].” Id., at 666. That logic extends to this case; here the Government failed on the first prong of the compelling interest test, and did not reach the least restrictive means prong, but that can make no difference. The point remains that the burdens at the preliminary injunction stage track the burdens at trial. The Government attempts to limit the rule announced in Ashcroft to content-based restrictions on speech, but the distinction is unavailing. The fact that Ashcroft involved such a restriction was the reason the Government had the burden of proof at trial under the First Amendment, see id., at 665, but in no way affected the Court’s assessment of the consequences of having that burden for purposes of the preliminary injunction. Here the burden is placed squarely on the Government by RFRA rather than the First Amendment, see 42 U. S. C. §§2000bb–1(b), 2000bb–2(3), but the consequences are the same. Congress’ express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage. III The Government’s second line of argument rests on the Controlled Substances Act itself. The Government contends that the Act’s description of Schedule I substances as having “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use … under medical supervision,” 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions such as that sought by the UDV. The Government goes on to argue that the regulatory regime established by the Act—a “closed” system that prohibits all use of controlled substances except as authorized by the Act itself, see Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 10)—“cannot function with its necessary rigor and comprehensiveness if subjected to judicial exemptions.” Brief for Petitioners 18. According to the Government, there would be no way to cabin religious exceptions once recognized, and “the public will misread” such exceptions as signaling that the substance at issue is not harmful after all. Id., at 23. Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions. A RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b). RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972).” 42 U. S. C. §2000bb(b)(1). In each of those cases, this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants. In Yoder, for example, we permitted an exemption for Amish children from a compulsory school attendance law. We recognized that the State had a “paramount” interest in education, but held that “despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote … and the impediment to those objectives that would flow from recognizing the claimed Amish exemption.” 406 U. S., at 213, 221 (emphasis added). The Court explained that the State needed “to show with more particularity how its admittedly strong interest … would be adversely affected by granting an exemption to the Amish.” Id., at 236 (emphasis added). In Sherbert, the Court upheld a particular claim to a religious exemption from a state law denying unemployment benefits to those who would not work on Saturdays, but explained that it was not announcing a constitutional right to unemployment benefits for “all persons whose religious convictions are the cause of their unemployment.” 374 U. S., at 410 (emphasis added). The Court distinguished the case “in which an employee’s religious convictions serve to make him a nonproductive member of society.” Ibid.; see also Smith, 494 U. S., at 899 (O’Connor, J., concurring in judgment) (strict scrutiny “at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim”). Outside the Free Exercise area as well, the Court has noted that “[c]ontext matters” in applying the compelling interest test, Grutter v. Bollinger, 539 U. S. 306, 327 (2003), and has emphasized that “strict scrutiny does take ‘relevant differences’ into account—indeed, that is its fundamental purpose,” Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 228 (1995). B Under the more focused inquiry required by RFRA and the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day. It is true, of course, that Schedule I substances such as DMT are exceptionally dangerous. See, e.g., Touby v. United States, 500 U. S. 160, 162 (1991). Nevertheless, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue here—the circumscribed, sacramental use of hoasca by the UDV. The question of the harms from the sacramental use of hoasca by the UDV was litigated below. Before the District Court found that the Government had not carried its burden of showing a compelling interest in preventing such harms, the court noted that it could not “ignore that the legislative branch of the government elected to place materials containing DMT on Schedule I of the [Act], reflecting findings that substances containing DMT have ‘a high potential for abuse,’ and ‘no currently accepted medical use in treatment in the United States,’ and that ‘[t]here is a lack of accepted safety for use of [DMT] under medical supervision.’ ” 282 F. Supp. 2d, at 1254. But Congress’ determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden under RFRA. This conclusion is reinforced by the Controlled Substances Act itself. The Act contains a provision authorizing the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.” 21 U. S. C. §822(d). The fact that the Act itself contemplates that exempting certain people from its requirements would be “consistent with the public health and safety” indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote—a Schedule I substance—by the Native American Church. See 21 CFR §1307.31 (2005). In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. See 42 U. S. C. §1996a(b)(1). Everything the Government says about the DMT in hoasca—that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use,” and has “a lack of accepted safety for use … under medical supervision,” 21 U. S. C. §812(b)(1)—applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in §812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993) (“It is established in our strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest ‘of the highest order’ … when it leaves appreciable damage to that supposedly vital interest unprohibited’ ” (quoting Florida Star v. B. J. F., 491 U. S. 524, 541–542 (1989) (Scalia, J., concurring in part and concurring in judgment))). The Government responds that there is a “unique relationship” between the United States and the Tribes, Brief for Petitioners 27; see Morton v. Mancari, 417 U. S. 535 (1974), but never explains what about that “unique” relationship justifies overriding the same congressional findings on which the Government relies in resisting any exception for the UDV’s religious use of hoasca. In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion. The Government argues that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions. RFRA, however, plainly contemplates that courts would recognize exceptions—that is how the law works. See 42 U. S. C. §2000bb–1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government”). Congress’ role in the peyote exemption—and the Executive’s, see 21 CFR §1307.31 (2005)—confirms that the findings in the Controlled Substances Act do not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress. C The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The Government argues that the effectiveness of the Controlled Substances Act will be “necessarily … undercut” if the Act is not uniformly applied, without regard to burdens on religious exercise. Brief for Petitioners 18. The peyote exception, however, has been in place since the outset of the Controlled Substances Act, and there is no evidence that it has “undercut” the Government’s ability to enforce the ban on peyote use by non-Indians. The Government points to some pre-Smith cases relying on a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause, see Brief for Petitioners 16, but those cases strike us as quite different from the present one. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise; they instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. In United States v. Lee, 455 U. S. 252 (1982), for example, the Court rejected a claimed exception to the obligation to pay Social Security taxes, noting that “mandatory participation is indispensable to the fiscal vitality of the social security system” and that the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Id., at 258, 260. See also Hernandez v. Commissioner, 490 U. S. 680, 700 (1989) (same). In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), the Court denied a claimed exception to Sunday closing laws, in part because allowing such exceptions “might well provide [the claimants] with an economic advantage over their competitors who must remain closed on that day.” Id., at 608–609. The whole point of a “uniform day of rest for all workers” would have been defeated by exceptions. See Sherbert, 374 U. S., at 408 (discussing Braunfeld). These cases show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program. Here the Government’s argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” 42 U. S. C. §2000bb–1(a). Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” §200bb(a)(5). This determination finds support in our cases; in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as “no more than a possibility” the State’s speculation “that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work” would drain the unemployment benefits fund. 374 U. S., at 407. We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules. In Cutter v. Wilkinson, 544 U. S. ___ (2005), we held that the Religious Land Use and Institutionalized Persons Act of 2000, which allows federal and state prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA, does not violate the Establishment Clause. We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Id., at ___ (slip op., at 12). Nothing in our opinion suggested that courts were not up to the task. We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. See 42 U. S. C. §2000bb(a)(4). And in fact the Government has not offered evidence demonstrating that granting the UDV an exemption would cause the kind of administrative harm recognized as a compelling interest in Lee, Hernandez, and Braunfeld. The Government failed to convince the District Court at the preliminary injunction hearing that health or diversion concerns provide a compelling interest in banning the UDV’s sacramental use of hoasca. It cannot compensate for that failure now with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act. See Tr. of Oral Arg. 17 (Deputy Solicitor General statement that exception could not be made even for “rigorously policed” use of “one drop” of substance “once a year”). IV Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances, Feb. 21, 1971, [1979–1980], 32 U. S. T. 543, T. I. A. S. No. 9725. The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention. The District Court rejected this interest because it found that the Convention does not cover hoasca. The court relied on the official commentary to the Convention, which notes that “Schedule I [of the Convention] does not list … natural hallucinogenic materials,” and that “[p]lants as such are not, and it is submitted are also not likely to be, listed in Schedule I, but only some products obtained from plants.” U. N. Commentary on the Convention on Psychotropic Substances 387, 385 (1976). The court reasoned that hoasca, like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty. See 282 F. Supp. 2d, at 1266–1269. We do not agree. The Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.” See 32 U. S. T., at 546, Art. 1(f)(i); id., at 551, Art. 3. Hoasca is a “solution or mixture” containing DMT; the fact that it is made by the simple process of brewing plants in water, as opposed to some more advanced method, does not change that. To the extent the commentary suggests plants themselves are not covered by the Convention, that is of no moment—the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention. The fact that hoasca is covered by the Convention, however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough.[Footnote 2] * * * The Government repeatedly invokes Congress’ findings and purposes underlying the Controlled Substances Act, but Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §§2000bb(a)(2), (5). We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U. S., at 885–890. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca. The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 As originally enacted, RFRA applied to States as well as the Federal Government. In City of Boerne v. Flores, 521 U. S. 507 (1997), we held the application to States to be beyond Congress’ legislative authority under §5 of the 14th Amendment. Footnote 2 In light of the foregoing, we do not reach the UDV’s argument that Art. 22, ¶5, of the Convention should be read to accommodate exceptions under domestic laws such as RFRA.
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546.US.243
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The Controlled Substances Act (CSA or Act), which was enacted in 1970 with the main objectives of combating drug abuse and controlling legitimate and illegitimate traffic in controlled substances, criminalizes, inter alia, the unauthorized distribution and dispensation of substances classified in any of its five schedules. The Attorney General may add, remove, or reschedule substances only after making particular findings, and on scientific and medical matters, he must accept the findings of the Secretary of Health and Human Services (Secretary). These proceedings must be on the record after an opportunity for comment. The dispute here involves controlled substances listed in Schedule II, which are generally available only by written prescription, 21 U. S. C. §829(a). A 1971 regulation promulgated by the Attorney General requires that such prescriptions be used “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR §1306.04. To prevent diversion of controlled substances, the CSA regulates the activity of physicians, who must register in accordance with rules and regulations promulgated by the Attorney General. He may deny, suspend, or revoke a registration that, as relevant here, would be “inconsistent with the public interest.” 21 U. S. C. §§824(a)(4), 822(a)(2). In determining consistency with the public interest, he must consider five factors, including the State’s recommendation, compliance with state, federal, and local law regarding controlled substances, and “public health and safety.” §823(f). The CSA explicitly contemplates a role for the States in regulating controlled substances. See §903. The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who, in compliance with ODWDA’s specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. In 2001, the Attorney General issued an Interpretive Rule to address the implementation and enforcement of the CSA with respect to ODWDA, declaring that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA. The State, a physician, a pharmacist, and some terminally ill state residents challenged the Rule. The District Court permanently enjoined its enforcement. The Ninth Circuit invalidated the Rule, reasoning that, by making a medical procedure authorized under Oregon law a federal offense, it altered the balance between the States and the Federal Government without the requisite clear statement that the CSA authorized the action; and in the alternative, that the Rule could not be squared with the CSA’s plain language, which targets only conventional drug abuse and excludes the Attorney General from medical policy decisions. Held: The CSA does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure. Pp. 8–28. (a) An administrative rule interpreting the issuing agency’s own ambiguous regulation may receive substantial deference. Auer v. Robbins, 519 U. S. 452, 461–463. So may an interpretation of an ambiguous statute, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–845, but only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority,” United States v. Mead Corp., 533 U. S. 218, 226–227. Otherwise, the interpretation is “entitled to respect” only to the extent it has the “power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140. Pp. 8–9. (b) The Interpretive Rule at issue is not entitled to Auer deference as an interpretation of 21 CFR §1306.04. Unlike the underlying regulations in Auer, which gave specificity to a statutory scheme the Secretary of Labor was charged with enforcing and reflected the Labor Department’s considerable experience and expertise, the underlying regulation here does little more than restate the terms of the statute itself. The CSA allows prescription of drugs that have a “currently accepted medical use,” 21 U. S. C. §812(b); requires a “medical purpose” for dispensing the least controlled substances of those on the schedules, §829(c); and defines a “valid prescription” as one “issued for a legitimate medical purpose,” 21 U. S. C. A. §830(b)(3)(A)(ii). Similarly, physicians are considered practitioners if they dispense controlled substances “in the course of professional practice.” 21 U. S. C. §802(21). The regulation just repeats two of these statutory phrases and attempts to summarize the others. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language. Furthermore, any statutory authority for the Interpretive Rule would have to come from 1984 CSA amendments adding the “public interest” requirement, but 21 CFR §1306.04 was adopted in 1971. That the current interpretation runs counter to the intent at the time of the regulation’s promulgation is an additional reason why Auer deference is unwarranted. Pp. 9–11. (c) The Interpretive Rule is also not entitled to Chevron deference. The statutory phrase “legitimate medical purpose” is ambiguous in the relevant sense. However, Chevron deference is not accorded merely because the statute is ambiguous and an administrative official is involved. A rule must be promulgated pursuant to authority Congress has delegated to the official. The specific respects in which the Attorney General is authorized to make rules under the CSA show that he is not authorized to make a rule declaring illegitimate a medical standard for patient care and treatment specifically authorized under state law. Congress delegated to the Attorney General only the authority to promulgate rules relating to “registration” and “control” of the dispensing of controlled substances, 21 U. S. C. A. §821, and “for the efficient execution of his [statutory] functions,” 21 U. S. C. §871(b). Control means “to add a … substance to a schedule,” §802(5), following specified procedures. Because the Interpretive Rule does not concern scheduling of substances and was not issued under the required procedures, it cannot fall under the Attorney General’s control authority. Even if “control” were understood to signify something other than its statutory definition, it could not support the Interpretive Rule. Nor can the Interpretive Rule be justified under the CSA’s registration provisions. It does not undertake the Act’s five-factor analysis for determining when registration is “inconsistent with the public interest,” §823(f), and it deals with much more than registration. It purports to declare that using controlled substances for physician-assisted suicide is a crime, an authority going well beyond the Attorney General’s statutory power to register or deregister physicians. It would be anomalous for Congress to have painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside the course of professional practice and therefore a criminal violation of the CSA. It is not enough that “public interest,” “public health and safety,” and “Federal law” are used in the part of the Act over which the Attorney General has authority. Cf. Sutton v. United Air Lines, Inc., 527 U. S. 471. The first two terms do not call on the Attorney General, or any Executive official, to make an independent assessment of the meaning of federal law. The Attorney General did not base the Interpretive Rule on an application of the five-factor test generally, or the “public health and safety” factor specifically. Even if he had, it is doubtful that he could cite those factors to deregister a physician simply because he deemed a controversial practice permitted by state law to have an illegitimate medical purpose. The federal-law factor requires the Attorney General to decide “[c]ompliance” with the law but does not suggest that he may decide what the law is. To say that he can define the substantive standards of medical practice as part of his authority would also put 21 U. S. C. §871(b) in considerable tension with the narrowly defined control and registration delegation. It would go, moreover, against the plain language of the text to treat a delegation for the “execution” of his functions as a further delegation to define other functions well beyond the Act’s specific grants of authority. The authority desired by the Government is inconsistent with the Act’s design in other fundamental respects, e.g., the Attorney General must share power with, and in some respect defer to, the Secretary, whose functions are likewise delineated and confined by the Act. Postenactment congressional commentary on the CSA’s regulation of medical practice is also at odds with the Attorney General’s claimed authority. The Government’s claim that the Attorney General’s decision is a legal, not medical, one does not suffice, for the Interpretive Rule places extensive reliance on medical judgments and views of the medical community in concluding that assisted suicide is not a legitimate medical purpose. The idea that Congress gave him such broad and unusual authority through an implicit delegation is not sustainable. The importance of the issue of physician-assisted suicide makes the oblique form of the claimed delegation all the more suspect. Pp. 11–22. (d) The Attorney General’s opinion is unpersuasive under Skidmore. The CSA and this Court’s case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, the Act manifests no intent to regulate the practice of medicine generally, which is understandable given federalism’s structure and limitations. The CSA’s structure and operation presume and rely upon a functioning medical profession regulated under the States’ police powers. The Federal Government can set uniform standards for regulating health and safety. In connection with the CSA, however, the only provision in which Congress set general, uniform medical practice standards, 42 U. S. C. §2990bb2a, strengthens the understanding of the CSA as a statute combating recreational drug abuse, and also indicates that when Congress wants to regulate medical practice in the given scheme, it does so by explicit statutory language. The difficulty in defending the Attorney General’s declaration that the CSA impliedly criminalizes physician-assisted suicide is compounded by the Act’s consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers for enforcing the CSA’s limited objectives. The Government’s contention that the terms “medical” or “medicine” refer to a healing or curative art, and thus cannot embrace the intentional hastening of a patient’s death, rests on a reading of 21 U. S. C. §829(a)’s prescription requirement without the illumination of the rest of the statute. Viewed in context, that requirement is better understood as ensuring that patients use controlled substances under a doctor’s supervision so as to prevent addiction and recreational abuse. To read prescriptions for assisted suicide as “drug abuse” under the CSA is discordant with the phrase’s consistent use throughout the Act, not to mention its ordinary meaning. The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA and the Act’s otherwise careful allocation of decisionmaking powers. Pp. 22–28. 368 F. 3d 1118, affirmed. Kennedy, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.
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The question before us is whether the Controlled Substances Act allows the United States Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure. As the Court has observed, “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide.” Washington v. Glucksberg, 521 U. S. 702, 735 (1997). The dispute before us is in part a product of this political and moral debate, but its resolution requires an inquiry familiar to the courts: interpreting a federal statute to determine whether Executive action is authorized by, or otherwise consistent with, the enactment. In 1994, Oregon became the first State to legalize assisted suicide when voters approved a ballot measure enacting the Oregon Death With Dignity Act (ODWDA). Ore. Rev. Stat. §127.800 et seq. (2003). ODWDA, which survived a 1997 ballot measure seeking its repeal, exempts from civil or criminal liability state-licensed physicians who, in compliance with the specific safeguards in ODWDA, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. The drugs Oregon physicians prescribe under ODWDA are regulated under a federal statute, the Controlled Substances Act (CSA or Act). 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq. The CSA allows these particular drugs to be available only by a written prescription from a registered physician. In the ordinary course the same drugs are prescribed in smaller doses for pain alleviation. A November 9, 2001 Interpretive Rule issued by the Attorney General addresses the implementation and enforcement of the CSA with respect to ODWDA. It determines that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA. The Interpretive Rule’s validity under the CSA is the issue before us. I A We turn first to the text and structure of the CSA. Enacted in 1970 with the main objectives of combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances, the CSA creates a comprehensive, closed regulatory regime criminalizing the unauthorized manufacture, distribution, dispensing, and possession of substances classified in any of the Act’s five schedules. Gonzales v. Raich, 545 U. S. ____, ___ (2005) (slip op., at 9–10); 21 U. S. C. §841 (2000 ed. and Supp. II); 21 U. S. C. §844. The Act places substances in one of five schedules based on their potential for abuse or dependence, their accepted medical use, and their accepted safety for use under medical supervision. Schedule I contains the most severe restrictions on access and use, and Schedule V the least. Raich, supra, at ___ (slip op., at 11); 21 U. S. C. §812. Congress classified a host of substances when it enacted the CSA, but the statute permits the Attorney General to add, remove, or reschedule substances. He may do so, however, only after making particular findings, and on scientific and medical matters he is required to accept the findings of the Secretary of Health and Human Services (Secretary). These proceedings must be on the record after an opportunity for comment. See 21 U. S. C. A. §811 (main ed. and Supp. 2005). The present dispute involves controlled substances listed in Schedule II, substances generally available only pursuant to a written, nonrefillable prescription by a physician. 21 U. S. C. §829(a). A 1971 regulation promulgated by the Attorney General requires that every prescription for a controlled substance “be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2005). To prevent diversion of controlled substances with medical uses, the CSA regulates the activity of physicians. To issue lawful prescriptions of Schedule II drugs, physicians must “obtain from the Attorney General a registration issued in accordance with the rules and regulations promulgated by him.” 21 U. S. C. §822(a)(2). The Attorney General may deny, suspend, or revoke this registration if, as relevant here, the physician’s registration would be “inconsistent with the public interest.” §824(a)(4); §822(a)(2). When deciding whether a practitioner’s registration is in the public interest, the Attorney General “shall” consider: “(1) The recommendation of the appropriate State licensing board or professional disciplinary authority. “(2) The applicant’s experience in dispensing, or conducting research with respect to controlled substances. “(3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. “(4) Compliance with applicable State, Federal, or local laws relating to controlled substances. “(5) Such other conduct which may threaten the public health and safety.” §823(f). The CSA explicitly contemplates a role for the States in regulating controlled substances, as evidenced by its pre-emption provision. “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together.” §903. B Oregon voters enacted ODWDA in 1994. For Oregon residents to be eligible to request a prescription under ODWDA, they must receive a diagnosis from their attending physician that they have an incurable and irreversible disease that, within reasonable medical judgment, will cause death within six months. Ore. Rev. Stat. §§127.815, 127.800(12) (2003). Attending physicians must also determine whether a patient has made a voluntary request, ensure a patient’s choice is informed, and refer patients to counseling if they might be suffering from a psychological disorder or depression causing impaired judgment. §§127.815, 127.825. A second “consulting” physician must examine the patient and the medical record and confirm the attending physician’s conclusions. §127.800(8). Oregon physicians may dispense or issue a prescription for the requested drug, but may not administer it. §§127.815(L), 127.880. The reviewing physicians must keep detailed medical records of the process leading to the final prescription, §127.855, records that Oregon’s Department of Human Services reviews, §127.865. Physicians who dispense medication pursuant to ODWDA must also be registered with both the State’s Board of Medical Examiners and the federal Drug Enforcement Administration (DEA). §127.815(1)(L). In 2004, 37 patients ended their lives by ingesting a lethal dose of medication prescribed under ODWDA. Oregon Dept. of Human Servs., Seventh Annual Report on Oregon’s Death with Dignity Act 20 (Mar. 10, 2005). C In 1997, Members of Congress concerned about ODWDA invited the DEA to prosecute or revoke the CSA registration of Oregon physicians who assist suicide. They contended that hastening a patient’s death is not legitimate medical practice, so prescribing controlled substances for that purpose violates the CSA. Letter from Sen. Orrin Hatch and Rep. Henry Hyde to Thomas A. Constantine (July 25, 1997), reprinted in Hearings on S. 2151 before the Senate Committee on the Judiciary, 105th Cong., 2d Sess., 2–3 (1999) (hereinafter Hearings). The letter received an initial, favorable response from the director of the DEA, see Letter from Thomas A. Constantine to Sen. Orrin Hatch (Nov. 5, 1997), Hearings 4–5, but Attorney General Reno considered the matter and concluded that the DEA could not take the proposed action because the CSA did not authorize it to “displace the states as the primary regulators of the medical profession, or to override a state’s determination as to what constitutes legitimate medical practice,” Letter from Attorney General Janet Reno to Sen. Orrin Hatch, on Oregon’s Death with Dignity Act (June 5, 1998), Hearings 5–6. Legislation was then introduced to grant the explicit authority Attorney General Reno found lacking; but it failed to pass. See H. R. 4006, 105th Cong., 2d Sess. (1998); H. R. 2260, 106th Cong., 1st Sess. (1999). In 2001, John Ashcroft was appointed Attorney General. Perhaps because Mr. Ashcroft had supported efforts to curtail assisted suicide while serving as a Senator, see, e.g., 143 Cong. Rec. 5589–5590 (1997) (remarks of Sen. Ashcroft), Oregon Attorney General Hardy Myers wrote him to request a meeting with Department of Justice officials should the Department decide to revisit the application of the CSA to assisted suicide. Letter of Feb. 2, 2001, App. to Brief for Patient-Respondents in Opposition 55a. Attorney General Myers received a reply letter from one of Attorney General Ashcroft’s advisers writing on his behalf, which stated “I am aware of no pending legislation in Congress that would prompt a review of the Department’s interpretation of the CSA as it relates to physician-assisted suicide. Should such a review be commenced in the future, we would be happy to include your views in that review.” Letter from Lori Sharpe (Apr. 17, 2001), id., at 58a. On November 9, 2001, without consulting Oregon or apparently anyone outside his Department, the Attorney General issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide. Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled “assisting suicide is not a ‘legitimate medical purpose’ within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act. Such conduct by a physician registered to dispense controlled substances may ‘render his registration . . . inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U. S. C. 824(a)(4). The Attorney General’s conclusion applies regardless of whether state law authorizes or permits such conduct by practitioners or others and regardless of the condition of the person whose suicide is assisted.” 66 Fed. Reg. 56608 (2001). There is little dispute that the Interpretive Rule would substantially disrupt the ODWDA regime. Respondents contend, and petitioners do not dispute, that every prescription filled under ODWDA has specified drugs classified under Schedule II. A physician cannot prescribe the substances without DEA registration, and revocation or suspension of the registration would be a severe restriction on medical practice. Dispensing controlled substances without a valid prescription, furthermore, is a federal crime. See, e.g., 21 U. S. C. §841(a)(1) (2000 ed., Supp. II); United States v. Moore, 423 U. S. 122 (1975). In response the State of Oregon, joined by a physician, a pharmacist, and some terminally ill patients, all from Oregon, challenged the Interpretive Rule in federal court. The United States District Court for the District of Oregon entered a permanent injunction against the Interpretive Rule’s enforcement. A divided panel of the Court of Appeals for the Ninth Circuit granted the petitions for review and held the Interpretive Rule invalid. Oregon v. Ashcroft, 368 F. 3d 1118 (2004). It reasoned that, by making a medical procedure authorized under Oregon law a federal offense, the Interpretive Rule altered the “ ‘ “usual constitutional balance between the States and the Federal Government” ’ ” without the requisite clear statement that the CSA authorized such action. Id., at 1124–1125 (quoting Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (in turn quoting Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985))). The Court of Appeals held in the alternative that the Interpretive Rule could not be squared with the plain language of the CSA, which targets only conventional drug abuse and excludes the Attorney General from decisions on medical policy. 368 F. 3d, at 1125–1129. We granted the Government’s petition for certiorari. 543 U. S. 1145 (2005). II Executive actors often must interpret the enactments Congress has charged them with enforcing and implementing. The parties before us are in sharp disagreement both as to the degree of deference we must accord the Interpretive Rule’s substantive conclusions and whether the Rule is authorized by the statutory text at all. Although balancing the necessary respect for an agency’s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter, familiar principles guide us. An administrative rule may receive substantial deference if it interprets the issuing agency’s own ambiguous regulation. Auer v. Robbins, 519 U. S. 452, 461–463 (1997). An interpretation of an ambiguous statute may also receive substantial deference. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–845 (1984). Deference in accordance with Chevron, however, is warranted only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U. S. 218, 226–227 (2001). Otherwise, the interpretation is “entitled to respect” only to the extent it has the “power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). A The Government first argues that the Interpretive Rule is an elaboration of one of the Attorney General’s own regulations, 21 CFR §1306.04 (2005), which requires all prescriptions be issued “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” As such, the Government says, the Interpretive Rule is entitled to considerable deference in accordance with Auer. In our view Auer and the standard of deference it accords to an agency are inapplicable here. Auer involved a disputed interpretation of the Fair Labor Standards Act of 1938 as applied to a class of law enforcement officers. Under regulations promulgated by the Secretary of Labor, an exemption from overtime pay depended, in part, on whether the employees met the “salary basis” test. 519 U. S., at 454–455. In this Court the Secretary of Labor filed an amicus brief explaining why, in his view, the regulations gave exempt status to the officers. Id., at 461. We gave weight to that interpretation, holding that because the applicable test was “a creature of the Secretary’s own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation. ” Ibid. (internal quotation marks omitted). In Auer, the underlying regulations gave specificity to a statutory scheme the Secretary was charged with enforcing and reflected the considerable experience and expertise the Department of Labor had acquired over time with respect to the complexities of the Fair Labor Standards Act. Here, on the other hand, the underlying regulation does little more than restate the terms of the statute itself. The language the Interpretive Rule addresses comes from Congress, not the Attorney General, and the near-equivalence of the statute and regulation belies the Government’s argument for Auer deference. The Government does not suggest that its interpretation turns on any difference between the statutory and regulatory language. The CSA allows prescription of drugs only if they have a “currently accepted medical use,” 21 U. S. C. §812(b); requires a “medical purpose” for dispensing the least controlled substances of those on the schedules, §829(c); and, in its reporting provision, defines a “valid prescription” as one “issued for a legitimate medical purpose,” §830(b)(3)(A)(ii). Similarly, physicians are considered to be acting as practitioners under the statute if they dispense controlled substances “in the course of professional practice.” §802(21). The regulation uses the terms “legitimate medical purpose” and “the course of professional practice,” ibid., but this just repeats two statutory phrases and attempts to summarize the others. It gives little or no instruction on a central issue in this case: Who decides whether a particular activity is in “the course of professional practice” or done for a “legitimate medical purpose”? Since the regulation gives no indication how to decide this issue, the Attorney General’s effort to decide it now cannot be considered an interpretation of the regulation. Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language. Furthermore, as explained below, if there is statutory authority to issue the Interpretive Rule it comes from the 1984 amendments to the CSA that gave the Attorney General authority to register and deregister physicians based on the public interest. The regulation was enacted before those amendments, so the Interpretive Rule cannot be justified as indicative of some intent the Attorney General had in 1971. That the current interpretation runs counter to the “intent at the time of the regulation’s promulgation,” is an additional reason why Auer deference is unwarranted. Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994) (internal quotation marks omitted). Deference under Auer being inappropriate, we turn to the question whether the Interpretive Rule, on its own terms, is a permissible interpretation of the CSA. B Just as the Interpretive Rule receives no deference under Auer, neither does it receive deference under Chevron. If a statute is ambiguous, judicial review of administrative rulemaking often demands Chevron deference; and the rule is judged accordingly. All would agree, we should think, that the statutory phrase “legitimate medical purpose” is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense. Chevron deference, however, is not accorded merely because the statute is ambiguous and an administrative official is involved. To begin with, the rule must be promulgated pursuant to authority Congress has delegated to the official. Mead, 533 U. S., at 226–227. The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law. The starting point for this inquiry is, of course, the language of the delegation provision itself. In many cases authority is clear because the statute gives an agency broad power to enforce all provisions of the statute. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. ___, ___ (2005) (slip op., at 8) (explaining that a Federal Communications Commission regulation received Chevron deference because “Congress has delegated to the Commission the authority to . . . ‘prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions’ of the Act” (quoting 47 U. S. C. §201(b))); Household Credit Services, Inc. v. Pfennig, 541 U. S. 232, 238 (2004) (giving Chevron deference to a Federal Reserve Board regulation where “Congress has expressly delegated to the Board the authority to prescribe regulations . . . as, in the judgment of the Board, ‘are necessary or proper to effectuate the purposes of ’ ” the statute (quoting 15 U. S. C. §1604(a))). The CSA does not grant the Attorney General this broad authority to promulgate rules. The CSA gives the Attorney General limited powers, to be exercised in specific ways. His rulemaking authority under the CSA is described in two provisions: (1) “The Attorney General is authorized to promulgate rules and regulations and to charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances and to listed chemicals,” 21 U. S. C. A. §821 (Supp. 2005); and (2) “The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter,” 21 U. S. C. §871(b). As is evident from these sections, Congress did not delegate to the Attorney General authority to carry out or effect all provisions of the CSA. Rather, he can promulgate rules relating only to “registration” and “control,” and “for the efficient execution of his functions” under the statute. Turning first to the Attorney General’s authority to make regulations for the “control” of drugs, this delegation cannot sustain the Interpretive Rule’s attempt to define standards of medical practice. Control is a term of art in the CSA. “As used in this subchapter,” §802––the subchapter that includes §821–– “The term ‘control’ means to add a drug or other substance, or immediate precursor, to a schedule under part B of this subchapter, whether by transfer from another schedule or otherwise.” §802(5). To exercise his scheduling power, the Attorney General must follow a detailed set of procedures, including requesting a scientific and medical evaluation from the Secretary. See 21 U. S. C. A. §§811, 812 (main ed. and Supp. 2005). The statute is also specific as to the manner in which the Attorney General must exercise this authority: “Rules of the Attorney General under this subsection [regarding scheduling] shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by [the Administrative Procedure Act, 5 U. S. C. §553].” 21 U. S. C. §811(a). The Interpretive Rule now under consideration does not concern the scheduling of substances and was not issued after the required procedures for rules regarding scheduling, so it cannot fall under the Attorney General’s “control” authority. Even if “control” in §821 were understood to signify something other than its statutory definition, it would not support the Interpretive Rule. The statutory references to “control” outside the scheduling context make clear that the Attorney General can establish controls “against diversion,” e.g., §823(a)(1), but do not give him authority to define diversion based on his view of legitimate medical practice. As explained below, the CSA’s express limitations on the Attorney General’s authority, and other indications from the statutory scheme, belie any notion that the Attorney General has been granted this implicit authority. Indeed, if “control” were given the expansive meaning required to sustain the Interpretive Rule, it would transform the carefully described limits on the Attorney General’s authority over registration and scheduling into mere suggestions. We turn, next, to the registration provisions of the CSA. Before 1984, the Attorney General was required to register any physician who was authorized by his State. The Attorney General could only deregister a physician who falsified his application, was convicted of a felony relating to controlled substances, or had his state license or registration revoked. See 84 Stat. 1255. The CSA was amended in 1984 to allow the Attorney General to deny registration to an applicant “if he determines that the issuance of such registration would be inconsistent with the public interest.” 21 U. S. C. §823(f). Registration may also be revoked or suspended by the Attorney General on the same grounds. §824(a)(4). In determining consistency with the public interest, the Attorney General must, as discussed above, consider five factors, including: the State’s recommendation; compliance with state, federal, and local laws regarding controlled substances; and public health and safety. §823(f). The Interpretive Rule cannot be justified under this part of the statute. It does not undertake the five-factor analysis and concerns much more than registration. Nor does the Interpretive Rule on its face purport to be an application of the registration provision in §823(f). It is, instead, an interpretation of the substantive federal law requirements (under 21 CFR §1306.04 (2005)) for a valid prescription. It begins by announcing that assisting suicide is not a “legitimate medical purpose” under §1306.04, and that dispensing controlled substances to assist a suicide violates the CSA. 66 Fed. Reg. 56608 (2001). Violation is a criminal offense, and often a felony, under 21 U. S. C. §841 (2000 ed. and Supp. II). The Interpretive Rule thus purports to declare that using controlled substances for physician-assisted suicide is a crime, an authority that goes well beyond the Attorney General’s statutory power to register or deregister. The Attorney General’s deregistration power, of course, may carry implications for criminal enforcement because if a physician dispenses a controlled substance after he is deregistered, he violates §841. The Interpretive Rule works in the opposite direction, however: it declares certain conduct criminal, placing in jeopardy the registration of any physician who engages in that conduct. To the extent the Interpretive Rule concerns registration, it simply states the obvious because one of the five factors the Attorney General must consider in deciding the “public interest” is “[c]ompliance with applicable State, Federal, or local laws relating to controlled substances.” 21 U. S. C. §823(f)(4). The problem with the design of the Interpretive Rule is that it cannot, and does not, explain why the Attorney General has the authority to decide what constitutes an underlying violation of the CSA in the first place. The explanation the Government seems to advance is that the Attorney General’s authority to decide whether a physician’s actions are inconsistent with the “public interest” provides the basis for the Interpretive Rule. By this logic, however, the Attorney General claims extraordinary authority. If the Attorney General’s argument were correct, his power to deregister necessarily would include the greater power to criminalize even the actions of registered physicians, whenever they engage in conduct he deems illegitimate. This power to criminalize—unlike his power over registration, which must be exercised only after considering five express statutory factors—would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside “the course of professional practice,” and therefore a criminal violation of the CSA. See Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U. S. 726, 744 (1973) (“In light of these specific grants of . . . authority, we are unwilling to construe the ambiguous provisions . . . to serve this purpose [of creating further authority]—a purpose for which it obviously was not intended”). Sutton v. United Air Lines, Inc., 527 U. S. 471 (1999), is instructive. The statute at issue was the Americans with Disabilities Act of 1990 (ADA), which, like the CSA, divides interpretive authority among various Executive actors. The Court relied on “the terms and structure of the ADA” to decide that neither the Equal Employment Opportunity Commission, nor any other agency had authority to define “disability” in the ADA. Id., at 479. Specifically, the delegating provision stated that the EEOC “shall issue regulations . . . to carry out this subchapter,” 42 U. S. C. §12116, and the section of the statute defining “disability” was in a different subchapter. The Court did not accept the idea that because “the employment subchapter, i.e., ‘this subchapter,’ includes other provisions that use the defined terms, . . . [t]he EEOC might elaborate, through regulations, on the meaning of ‘disability’ . . . if elaboration is needed in order to ‘carry out’ the substantive provisions of ‘this subchapter.’ ” 527 U. S., at 514 (Breyer, J., dissenting). See also Adams Fruit Co. v. Barrett, 494 U. S. 638, 649–650 (1990) (holding that a delegation of authority to promulgate motor vehicle safety “standards” did not include the authority to decide the pre-emptive scope of the federal statute because “[n]o such delegation regarding [the statute’s] enforcement provisions is evident in the statute”). The same principle controls here. It is not enough that the terms “public interest,” “public health and safety,” and “Federal law” are used in the part of the statute over which the Attorney General has authority. The statutory terms “public interest” and “public health” do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law. The Attorney General did not base the Interpretive Rule on an application of the five-factor test generally, or the “public health and safety” factor specifically. Even if he had, it is doubtful the Attorney General could cite the “public interest” or “public health” to deregister a physician simply because he deemed a controversial practice permitted by state law to have an illegitimate medical purpose. As for the federal law factor, though it does require the Attorney General to decide “[c]ompliance” with the law, it does not suggest that he may decide what the law says. Were it otherwise, the Attorney General could authoritatively interpret “State” and “local laws,” which are also included in 21 U. S. C. §823(f), despite the obvious constitutional problems in his doing so. Just as he must evaluate compliance with federal law in deciding about registration, the Attorney General must as surely evaluate compliance with federal law in deciding whether to prosecute; but this does not entitle him to Chevron deference. See Crandon v. United States, 494 U. S. 152, 177 (1990) (Scalia, J., concurring in judgment) (“The Justice Department, of course, has a very specific responsibility to determine for itself what this statute means, in order to decide when to prosecute; but we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference”). The limits on the Attorney General’s authority to define medical standards for the care and treatment of patients bear also on the proper interpretation of §871(b). This section allows the Attorney General to best determine how to execute “his functions.” It is quite a different matter, however, to say that the Attorney General can define the substantive standards of medical practice as part of his authority. To find a delegation of this extent in §871 would put that part of the statute in considerable tension with the narrowly defined delegation concerning control and registration. It would go, moreover, against the plain language of the text to treat a delegation for the “execution” of his functions as a further delegation to define other functions well beyond the statute’s specific grants of authority. When Congress chooses to delegate a power of this extent, it does so not by referring back to the administrator’s functions but by giving authority over the provisions of the statute he is to interpret. See, e.g., National Cable & Telecommunications Assn., 545 U. S. ___; Household Credit Services, 541 U. S. 232. The authority desired by the Government is inconsistent with the design of the statute in other fundamental respects. The Attorney General does not have the sole delegated authority under the CSA. He must instead share it with, and in some respects defer to, the Secretary, whose functions are likewise delineated and confined by the statute. The CSA allocates decisionmaking powers among statutory actors so that medical judgments, if they are to be decided at the federal level and for the limited objects of the statute, are placed in the hands of the Secretary. In the scheduling context, for example, the Secretary’s recommendations on scientific and medical matters bind the Attorney General. The Attorney General cannot control a substance if the Secretary disagrees. 21 U. S. C. §811(b). See H. R. Rep. No. 91–1444, pt. 1, p. 33 (1970) (the section “is not intended to authorize the Attorney General to undertake or support medical and scientific research [for the purpose of scheduling], which is within the competence of the Department of Health, Education, and Welfare”). In a similar vein the 1970 Act’s regulation of medical practice with respect to drug rehabilitation gives the Attorney General a limited role; for it is the Secretary who, after consultation with the Attorney General and national medical groups, “determine[s] the appropriate methods of professional practice in the medical treatment of … narcotic addiction.” 42 U. S. C. §290bb–2a; see 21 U. S. C. §823(g) (2000 ed. and Supp. II) (stating that the Attorney General shall register practitioners who dispense drugs for narcotics treatment when the Secretary has determined the applicant is qualified to treat addicts and the Attorney General has concluded the applicant will comply with record keeping and security regulations); Moore, 423 U. S., at 144 (noting that in enacting the addiction-treatment provisions, Congress sought to change the fact “that ‘criminal prosecutions’ in the past had turned on the opinions of federal prosecutors”); H. R. Rep. No. 93–884, p. 6 (1974) (“This section preserves the distinctions found in the [CSA] between the functions of the Attorney General and the Secretary . . . . All decisions of a medical nature are to be made by the Secretary . . . . Law enforcement decisions respecting the security of stocks of narcotics drugs and the maintenance of records on such drugs are to be made by the Attorney General”). Post enactment congressional commentary on the CSA’s regulation of medical practice is also at odds with the Attorney General’s claimed authority to determine appropriate medical standards. In 1978, in preparation for ratification of the Convention on Psychotropic Substances, Feb. 21, 1971, [1979–1980] 32 U. S. T. 543, T. I. A. S. No. 9725, Congress decided it would implement the United States’ compliance through “the framework of the procedures and criteria for classification of substances provided in the” CSA. 21 U. S. C. §801a(3). It did so to ensure that “nothing in the Convention will interfere with ethical medical practice in this country as determined by [the Secretary] on the basis of a consensus of the views of the American medical and scientific community.” Ibid. The structure of the CSA, then, conveys unwillingness to cede medical judgments to an Executive official who lacks medical expertise. In interpreting statutes that divide authority, the Court has recognized: “Because historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.” Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 153 (1991) (citations omitted). This presumption works against a conclusion that the Attorney General has authority to make quintessentially medical judgments. The Government contends the Attorney General’s decision here is a legal, not a medical, one. This generality, however, does not suffice. The Attorney General’s Interpretive Rule, and the Office of Legal Counsel memo it incorporates, place extensive reliance on medical judgments and the views of the medical community in concluding that assisted suicide is not a “legitimate medical purpose.” See 66 Fed. Reg. 56608 (noting the “medical” distinctions between assisting suicide and giving sufficient medication to alleviate pain); Memorandum from Office of Legal Counsel to Attorney General (June 27, 2001), App. to Pet. for Cert. 121a–122a, and n. 17 (discussing the “Federal medical policy” against physician-assisted suicide), id., at 124a–130a (examining views of the medical community). This confirms that the authority claimed by the Attorney General is both beyond his expertise and incongruous with the statutory purposes and design. The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA’s registration provision is not sustainable. “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001); see FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) (“[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion”). The importance of the issue of physician-assisted suicide, which has been the subject of an “earnest and profound debate” across the country, Glucksberg, 521 U. S., at 735, makes the oblique form of the claimed delegation all the more suspect. Under the Government’s theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide. Were this argument accepted, he could decide whether any particular drug may be used for any particular purpose, or indeed whether a physician who administers any controversial treatment could be deregistered. This would occur, under the Government’s view, despite the statute’s express limitation of the Attorney General’s authority to registration and control, with attendant restrictions on each of those functions, and despite the statutory purposes to combat drug abuse and prevent illicit drug trafficking. We need not decide whether Chevron deference would be warranted for an interpretation issued by the Attorney General concerning matters closer to his role under the CSA, namely preventing doctors from engaging in illicit drug trafficking. In light of the foregoing, however, the CSA does not give the Attorney General authority to issue the Interpretive Rule as a statement with the force of law. If, in the course of exercising his authority, the Attorney General uses his analysis in the Interpretive Rule only for guidance in deciding when to prosecute or deregister, then the question remains whether his substantive interpretation is correct. Since the Interpretive Rule was not promulgated pursuant to the Attorney General’s authority, its interpretation of “legitimate medical purpose” does not receive Chevron deference. Instead, it receives deference only in accordance with Skidmore. “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U. S., at 140; see also Mead, 533 U. S., at 235 (noting that an opinion receiving Skidmore deference may “claim the merit of its writer’s thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight”). The deference here is tempered by the Attorney General’s lack of expertise in this area and the apparent absence of any consultation with anyone outside the Department of Justice who might aid in a reasoned judgment. In any event, under Skidmore, we follow an agency’s rule only to the extent it is persuasive, see Christensen v. Harris County, 529 U. S. 576, 587 (2000); and for the reasons given and for further reasons set out below, we do not find the Attorney General’s opinion persuasive. III As we have noted before, the CSA “repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Raich, 545 U. S., at ___ (slip op., at 9). In doing so, Congress sought to “conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” Ibid. It comes as little surprise, then, that we have not considered the extent to which the CSA regulates medical practice beyond prohibiting a doctor from acting as a drug “ ‘pusher’ ” instead of a physician. Moore, 423 U. S., at 143. In Moore, we addressed a situation in which a doctor “sold drugs, not for legitimate purposes, but primarily for the profits to be derived therefrom.” Id., at 135 (quoting H. R. Rep. No. 91–1444, pt. 1, at 10; internal quotation marks omitted). There the defendant, who had engaged in large-scale overprescribing of methadone, “concede[d] in his brief that he did not observe generally accepted medical practices.” 423 U. S., at 126. And in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483 (2001), Congress’ express determination that marijuana had no accepted medical use foreclosed any argument about statutory coverage of drugs available by a doctor’s prescription. In deciding whether the CSA can be read as prohibiting physician-assisted suicide, we look to the statute’s text and design. The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States “ ‘great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.’ ” Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 756 (1985)). The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States’ police powers. The Attorney General can register a physician to dispense controlled substances “if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U. S. C. §823(f). When considering whether to revoke a physician’s registration, the Attorney General looks not just to violations of federal drug laws; but he “shall” also consider “[t]he recommendation of the appropriate state licensing board or professional disciplinary authority” and the registrant’s compliance with state and local drug laws. Ibid. The very definition of a “practitioner” eligible to prescribe includes physicians “licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices” to dispense controlled substances. §802(21). Further cautioning against the conclusion that the CSA effectively displaces the States’ general regulation of medical practice is the Act’s pre-emption provision, which indicates that, absent a positive conflict, none of the Act’s provisions should be “construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates … to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State.” §903. Oregon’s regime is an example of the state regulation of medical practice that the CSA presupposes. Rather than simply decriminalizing assisted suicide, ODWDA limits its exercise to the attending physicians of terminally ill patients, physicians who must be licensed by Oregon’s Board of Medical Examiners. Ore. Rev. Stat. §§127.815, 127.800(10) (2003). The statute gives attending physicians a central role, requiring them to provide prognoses and prescriptions, give information about palliative alternatives and counseling, and ensure patients are competent and acting voluntarily. §127.815. Any eligible patient must also get a second opinion from another registered physician, §127.820, and the statute’s safeguards require physicians to keep and submit to inspection detailed records of their actions, §§127.855, 127.865. Even though regulation of health and safety is “primarily, and historically, a matter of local concern,” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. See Raich, supra, at ___ (slip op., at 6). In connection to the CSA, however, we find only one area in which Congress set general, uniform standards of medical practice. Title I of the Comprehensive Drug Abuse Prevention and Control Act of 1970, of which the CSA was Title II, provides that “[The Secretary], after consultation with the Attorney General and with national organizations representative of persons with knowledge and experience in the treatment of narcotic addicts, shall determine the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts, and shall report thereon from time to time to the Congress.” §4, 84 Stat. 1241, codified at 42 U. S. C. §290bb–2a. This provision strengthens the understanding of the CSA as a statute combating recreational drug abuse, and also indicates that when Congress wants to regulate medical practice in the given scheme, it does so by explicit language in the statute. In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide. This difficulty is compounded by the CSA’s consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers for enforcing the limited objects of the CSA. See Part II–B, supra. The Government’s attempt to meet this challenge rests, for the most part, on the CSA’s requirement that every Schedule II drug be dispensed pursuant to a “written prescription of a practitioner.” 21 U. S. C. §829(a). A prescription, the Government argues, necessarily implies that the substance is being made available to a patient for a legitimate medical purpose. The statute, in this view, requires an anterior judgment about the term “medical” or “medicine.” The Government contends ordinary usage of these words ineluctably refers to a healing or curative art, which by these terms cannot embrace the intentional hastening of a patient’s death. It also points to the teachings of Hippocrates, the positions of prominent medical organizations, the Federal Government, and the judgment of the 49 States that have not legalized physician-assisted suicide as further support for the proposition that the practice is not legitimate medicine. See Brief for Petitioners 22–24; Memorandum from Office of Legal Counsel to Attorney General, App. to Pet. for Cert. 124a–130a. On its own, this understanding of medicine’s boundaries is at least reasonable. The primary problem with the Government’s argument, however, is its assumption that the CSA impliedly authorizes an Executive officer to bar a use simply because it may be inconsistent with one reasonable understanding of medical practice. Viewed alone, the prescription requirement may support such an understanding, but statutes “should not be read as a series of unrelated and isolated provisions.” Gustafson v. Alloyd Co., 513 U. S. 561, 570 (1995). The CSA’s substantive provisions and their arrangement undermine this as- sertion of an expansive federal authority to regulate medicine. The statutory criteria for deciding what substances are controlled, determinations which are central to the Act, consistently connect the undefined term “drug abuse” with addiction or abnormal effects on the nervous system. When the Attorney General schedules drugs, he must consider a substance’s psychic or physiological dependence liability. 21 U. S. C. §811(c)(7). To classify a substance in Schedules II through V, the Attorney General must find abuse of the drug leads to psychological or physical dependence. §812(b). Indeed, the differentiation of Schedules II through V turns in large part on a substance’s habit-forming potential: The more addictive a substance, the stricter the controls. Ibid. When Congress wanted to extend the CSA’s regulation to substances not obviously habit forming or psychotropic, moreover, it relied not on Executive ingenuity, but rather on specific legislation. See §1902(a) of the Anabolic Steroids Control Act of 1990, 104 Stat. 4851 (placing anabolic steroids in Schedule III). The statutory scheme with which the CSA is intertwined further confirms a more limited understanding of the prescription requirement. When the Secretary considers FDA approval of a substance with “stimulant, depressant, or hallucinogenic effect,” he must forward the information to the Attorney General for possible scheduling. Shedding light on Congress’ understanding of drug abuse, this requirement appears under the heading “Abuse potential.” 21 U. S. C. §811(f). Similarly, when Congress prepared to implement the Convention on Psychotropic Substances, it did so through the CSA. §801a. The Interpretive Rule rests on a reading of the prescription requirement that is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute. See Massachusetts v. Morash, 490 U. S. 107, 114–115 (1989). Viewed in its context, the prescription requirement is better understood as a provision that ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, the provision also bars doctors from peddling to patients who crave the drugs for those prohibited uses. See Moore, 423 U. S., at 135, 143. To read prescriptions for assisted suicide as constituting “drug abuse” under the CSA is discordant with the phrase’s consistent use throughout the statute, not to mention its ordinary meaning. The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA, and the statute’s otherwise careful allocation of decisionmaking powers. Just as the conventions of expression indicate that Congress is unlikely to alter a statute’s obvious scope and division of authority through muffled hints, the background principles of our federal system also belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power. It is unnecessary even to consider the application of clear statement requirements, see, e.g., United States v. Bass, 404 U. S. 336, 349 (1971); cf. BFP v. Resolution Trust Corporation, 511 U. S. 531, 544–546 (1994), or presumptions against pre-emption, see, e.g., Rush Prudential HMO, Inc. v. Moran, 536 U. S. 355, 387 (2002), to reach this commonsense conclusion. For all these reasons, we conclude the CSA’s prescription requirement does not authorize the Attorney General to bar dispensing controlled substances for assisted suicide in the face of a state medical regime permitting such conduct. IV The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it. The judgment of the Court of Appeals is Affirmed.
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547.US.813
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In No. 05–5224, a 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis’s trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis’s objection, which he based on the Sixth Amendment’s Confrontation Clause. He was convicted. The Washington Court of Appeals affirmed, as did the State Supreme Court, which concluded that, inter alia, the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial. In No. 05–5705, when police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel’s bench trial for, inter alia, domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel’s objection that he had no opportunity to cross-examine her. Hershel was convicted, and the Indiana Court of Appeals affirmed in relevant part. The State Supreme Court also affirmed, concluding that, although Amy’s affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt. Held: 1. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U. S. 36, 53–54. These cases require the Court to determine which police “interrogations” produce statements that fall within this prohibition. Without attempting to produce an exhaustive classification of all conceivable statements as either testimonial or nontestimonial, it suffices to decide the present cases to hold that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Pp. 6–7. 2. McCottry’s statements identifying Davis as her assailant were not testimonial. Pp. 8–14. (a) This case requires the Court to decide whether the Confrontation Clause applies only to testimonial hearsay, and, if so, whether the 911 recording qualifies. Crawford suggested the answer to the first question, noting that “the Confrontation Clause … applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Only “testimonial statements” cause a declarant to be a witness. The Court is unaware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not involve testimony as thus defined. Well into the 20th century, this Court’s jurisprudence was carefully applied only in the testimonial context, and its later cases never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases involving testimonial hearsay. Pp. 8–11. (b) The question in Davis, therefore, is whether, objectively considered, the interrogation during the 911 call produced testimonial statements. In contrast to Crawford, where the interrogation took place at a police station and was directed solely at establishing a past crime, a 911 call is ordinarily designed primarily to describe current circumstances requiring police assistance. The difference is apparent here. McCottry was speaking of events as they were actually happening, while Crawford’s interrogation took place hours after the events occurred. Moreover, McCottry was facing an ongoing emergency. Further, the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the difference in the level of formality is striking. Crawford calmly answered questions at a station house, with an officer-interrogator taping and taking notes, while McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even safe. Thus, the circumstances of her interrogation objectively indicate that its primary purpose was to enable police assistance to meet an ongoing emergency. She was not acting as a witness or testifying. Pp. 11–14. 3. Amy Hammon’s statements were testimonial. They were not much different from those in Crawford. It is clear from the circumstances that Amy’s interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress, she told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened. Objectively viewed, the primary, if not sole, purpose of the investigation was to investigate a possible crime. While the formal features of Crawford’s interrogation strengthened her statements’ testimonial aspect, such features were not essential to the point. In both cases, the declarants were separated from the defendants, the statements recounted how potentially criminal past events began and progressed, and the interrogation took place some time after the events were over. For the same reasons the comparison to Crawford is compelling, the comparison to Davis is unpersuasive. The statements in Davis were taken when McCottry was alone, unprotected by police, and apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. Pp. 14–17. 4. The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing—under which one who obtains a witness’s absence by wrongdoing forfeits the constitutional right to confrontation—is properly raised in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon’s affidavit. Pp. 18–19. No. 05–5224, 154 Wash. 2d 291, 111 P. 3d 844, affirmed; No. 05–5705, 829 N. E. 2d 444, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part. Together with No. 05–5705, Hammon v. Indiana, on certiorari to the Supreme Court of Indiana.
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These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are “testimonial” and thus subject to the requirements of the Sixth Amendment’s Confrontation Clause. I A The relevant statements in Davis v. Washington, No. 05–5224, were made to a 911 emergency operator on February 1, 2001. When the operator answered the initial call, the connection terminated before anyone spoke. She reversed the call, and Michelle McCottry answered. In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this case: “911 Operator: Hello. “Complainant: Hello. “911 Operator: What’s going on? “Complainant: He’s here jumpin’ on me again. “911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment? “Complainant: I’m in a house. “911 Operator: Are there any weapons? “Complainant: No. He’s usin’ his fists. “911 Operator: Okay. Has he been drinking? “Complainant: No. “911 Operator: Okay, sweetie. I’ve got help started. Stay on the line with me, okay? “Complainant: I’m on the line. “911 Operator: Listen to me carefully. Do you know his last name? “Complainant: It’s Davis. “911 Operator: Davis? Okay, what’s his first name? “Complainant: Adran “911 Operator: What is it? “Complainant: Adrian. “911 Operator: Adrian? “Complainant: Yeah. “911 Operator: Okay. What’s his middle initial? “Complainant: Martell. He’s runnin’ now.” App. in No. 05–5224, pp. 8–9. As the conversation continued, the operator learned that Davis had “just r[un] out the door” after hitting McCottry, and that he was leaving in a car with someone else. Id., at 9–10. McCottry started talking, but the operator cut her off, saying, “Stop talking and answer my questions.” Id., at 10. She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was “to get his stuff,” since McCottry was moving. Id., at 11–12. McCottry described the context of the assault, id., at 12, after which the operator told her that the police were on their way. “They’re gonna check the area for him first,” the operator said, “and then they’re gonna come talk to you.” Id., at 12–13. The police arrived within four minutes of the 911 call and observed McCottry’s shaken state, the “fresh injuries on her forearm and her face,” and her “frantic efforts to gather her belongings and her children so that they could leave the residence.” 154 Wash. 2d 291, 296, 111 P. 3d 844, 847 (2005) (en banc). The State charged Davis with felony violation of a domestic no-contact order. “The State’s only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries.” Ibid. McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear. Over Davis’s objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him. The Washington Court of Appeals affirmed, 116 Wash. App. 81, 64 P. 3d 661 (2003). The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation in which McCottry identified Davis was not testimonial, and that if other portions of the conversation were testimonial, admitting them was harmless beyond a reasonable doubt. 154 Wash. 2d, at 305, 111 P. 3d, at 851. We granted certiorari. 546 U. S. ___ (2005). B In Hammon v. Indiana, No. 05–5705, police responded late on the night of February 26, 2003, to a “reported domestic disturbance” at the home of Hershel and Amy Hammon. 829 N. E. 2d 444, 446 (Ind. 2005). They found Amy alone on the front porch, appearing “ ‘somewhat frightened,’ ” but she told them that “ ‘nothing was the matter,’ ” id., at 446, 447. She gave them permission to enter the house, where an officer saw “a gas heating unit in the corner of the living room” that had “flames coming out of the … partial glass front. There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit.” App. in No. 05–5705, p. 16. Hershel, meanwhile, was in the kitchen. He told the police “that he and his wife had ‘been in an argument’ but ‘everything was fine now’ and the argument ‘never became physical.’ ” 829 N. E. 2d, at 447. By this point Amy had come back inside. One of the officers remained with Hershel; the other went to the living room to talk with Amy, and “again asked [her] what had occurred.” Ibid.; App. in No. 05–5705, at 17, 32. Hershel made several attempts to participate in Amy’s conversation with the police, see id., at 32, but was rebuffed. The officer later testified that Hershel “became angry when I insisted that [he] stay separated from Mrs. Hammon so that we can investigate what had happened.” Id., at 34. After hearing Amy’s account, the officer “had her fill out and sign a battery affidavit.” Id., at 18. Amy handwrote the following: “Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id., at 2. The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at his subsequent bench trial. The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit. Hershel’s counsel repeatedly objected to the admission of this evidence. See id., at 11, 12, 13, 17, 19, 20, 21. At one point, after hearing the prosecutor defend the affidavit because it was made “under oath,” defense counsel said, “That doesn’t give us the opportunity to cross examine [the] person who allegedly drafted it. Makes me mad.” Id., at 19. Nonetheless, the trial court admitted the affidavit as a “present sense impression,” id., at 20, and Amy’s statements as “excited utterances” that “are expressly permitted in these kinds of cases even if the declarant is not available to testify.” Id., at 40. The officer thus testified that Amy “informed me that she and Hershel had been in an argument. That he became irrate [sic] over the fact of their daughter going to a boyfriend’s house. The argument became … physical after being verbal and she informed me that Mr. Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater. . . . . . “She informed me Mr. Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe.” Id., at 17–18. The trial judge found Hershel guilty on both charges, id., at 40, and the Indiana Court of Appeals affirmed in relevant part, 809 N. E. 2d 945 (2004). The Indiana Supreme Court also affirmed, concluding that Amy’s statement was admissible for state-law purposes as an excited utterance, 829 N. E. 2d, at 449; that “a ‘testimonial’ statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings,” where “the motivations of the questioner and declarant are the central concerns,” id., at 456, 457; and that Amy’s oral statement was not “testimonial” under these standards, id., at 458. It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench. Id., at 458–459. We granted certiorari. 546 U. S. ___ (2005). II The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 53–54 (2004), we held that this provision bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase “testimonial statements.” Only statements of this sort cause the declarant to be a “witness” within the meaning of the Confrontation Clause. See id., at 51. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Our opinion in Crawford set forth “[v]arious formulations” of the core class of “ ‘testimonial’ ” statements, ibid., but found it unnecessary to endorse any of them, because “some statements qualify under any definition,” id., at 52. Among those, we said, were “[s]tatements taken by police officers in the course of interrogations,” ibid.; see also id., at 53. The questioning that generated the deponent’s statement in Crawford—which was made and recorded while she was in police custody, after having been given Miranda warnings as a possible suspect herself—“qualifies under any conceivable definition” of an “ ‘interrogation,’ ” 541 U. S., at 53, n. 4. We therefore did not define that term, except to say that “[w]e use [it] . . . in its colloquial, rather than any technical legal, sense,” and that “one can imagine various definitions . . . , and we need not select among them in this case.” Ibid. The character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony. Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.[Footnote 1] III A In Crawford, it sufficed for resolution of the case before us to determine that “even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.” Id., at 53. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by “interrogations.” The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call[Footnote 2] are an interrogation in one sense, but not in a sense that “qualifies under any conceivable definition.” We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies. The answer to the first question was suggested in Crawford, even if not explicitly held: “The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ 1 N. Webster, An American Dictionary of the English Language (1828). ‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” 541 U. S., at 51. A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its “core,” but its perimeter. We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined.[Footnote 3] Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context. See, e.g., Reynolds v. United States, 98 U. S. 145, 158 (1879) (testimony at prior trial was subject to the Confrontation Clause, but petitioner had forfeited that right by procuring witness’s absence); Mattox v. United States, 156 U. S. 237, 240–244 (1895) (prior trial testimony of deceased witnesses admitted because subject to cross-examination); Kirby v. United States, 174 U. S. 47, 55–56 (1899) (guilty pleas and jury conviction of others could not be admitted to show that property defendant received from them was stolen); Motes v. United States, 178 U. S. 458, 467, 470–471 (1900) (written deposition subject to cross-examination was not admissible because witness was available); Dowdell v. United States, 221 U. S. 325, 330–331 (1911) (facts regarding conduct of prior trial certified to by the judge, the clerk of court, and the official reporter did not relate to defendants’ guilt or innocence and hence were not statements of “witnesses” under the Confrontation Clause). Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U. S. 56 (1980),[Footnote 4] never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford, 541 U. S., at 57–59 (citing cases), with one arguable exception, see id., at 58, n. 8 (discussing White v. Illinois, 502 U. S. 346 (1992)). Where our cases did dispense with those requirements—even under the Roberts approach—the statements at issue were clearly nontestimonial. See, e.g., Bourjaily v. United States, 483 U. S. 171, 181–184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U. S. 74, 87–89 (1970) (plurality opinion) (statements from one prisoner to another). Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counterparts involved testimonial statements of the most formal sort—sworn testimony in prior judicial proceedings or formal depositions under oath—which invites the argument that the scope of the Clause is limited to that very formal category. But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions, see Crawford, supra, at 52, and n. 3. In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it. The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, supra, at 53, that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., at 51. (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e.g., United States v. Stewart, 433 F. 3d 273, 288 (CA2 2006) (false statements made to federal investigators violate 18 U. S. C. §1001); State v. Reed, 2005 WI 53, ¶30, 695 N. W. 2d 315, 323 (state criminal offense to “knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty”).) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to “establis[h] or prov[e]” some past fact, but to describe current circumstances requiring police assistance. The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than “describ[ing] past events,” Lilly v. Virginia, 527 U. S. 116, 137 (1999) (plurality opinion). Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry’s call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186 (2004). And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. We conclude from all this that the circumstances of McCottry’s interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not “a weaker substitute for live testimony” at trial, United States v. Inadi, 475 U. S. 387, 394 (1986), like Lord Cobham’s statements in Raleigh’s Case, 2 How. St. Tr. 1 (1603), or Jane Dingler’s ex parte statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or Sylvia Crawford’s statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry’s emergency statement does not. No “witness” goes into court to proclaim an emergency and seek help. Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases. None of them involves statements made during an ongoing emergency. In King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), for example, a young rape victim, “immediately on her coming home, told all the circumstances of the injury” to her mother. Id., at 200, 168 Eng. Rep., at 202. The case would be helpful to Davis if the relevant statement had been the girl’s screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events. This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, “evolve into testimonial statements,” 829 N. E. 2d, at 457, once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry’s statements were testimonial, not unlike the “structured police questioning” that occurred in Crawford, 541 U. S., at 53, n. 4. This presents no great problem. Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U. S. 649, 658–659 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. Davis’s jury did not hear the complete 911 call, although it may well have heard some testimonial portions. We were asked to classify only McCottry’s early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial. That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable doubt. Davis does not challenge that holding, and we therefore assume it to be correct. B Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct—as, indeed, the testifying officer expressly acknowledged, App. in No. 05–5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the officers first arrived, Amy told them that things were fine, id., at 14, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) “what is happening,” but rather “what happened.” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime—which is, of course, precisely what the officer should have done. It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U. S., at 53, n. 4. While these features certainly strengthened the statements’ testimonial aspect—made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events—none was essential to the point. It was formal enough that Amy’s interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his “investigat[ion].” App. in No. 05–5705, at 34. What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations, 541 U. S., at 52, is shared by Amy’s statement here. Both declarants were actively separated from the defendant—officers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a wit- ness does on direct examination; they are inherently testimonial.[Footnote 5] Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis. For the reasons we find the comparison to Crawford compelling, we find the comparison to Davis unpersuasive. The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer’s questions, he had her execute an affidavit, in order, he testified, “[t]o establish events that have occurred previously.” App. in No. 05–5705, at 18. Although we necessarily reject the Indiana Supreme Court’s implication that virtually any “initial inquiries” at the crime scene will not be testimonial, see 829 N. E. 2d, at 453, 457, we do not hold the opposite—that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that “[o]fficers called to investigate … need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, 542 U. S., at 186. Such exigencies may often mean that “initial inquiries” produce nontestimonial statements. But in cases like this one, where Amy’s statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were “initial inquiries” is immaterial. Cf. Crawford, supra, at 52, n. 3.[Footnote 6] IV Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two cases—domestic violence—requires greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. Cf. Kyllo v. United States, 533 U. S. 27 (2001) (suppressing evidence from an illegal search). But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that “the rule of forfeiture by wrongdoing … extinguishes confrontation claims on essentially equitable grounds.” 541 U. S., at 62 (citing Reynolds, 98 U. S., at 158–159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e.g., United States v. Scott, 284 F. 3d 758, 762 (CA7 2002). State courts tend to follow the same practice, see, e.g., Commonwealth v. Edwards, 444 Mass. 526, 542, 830 N. E. 2d 158, 172 (2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that “hearsay evidence, including the unavailable witness’s out-of-court statements, may be considered.” Id., at 545, 830 N. E. 2d, at 174. The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the “reliability” of ex parte statements more easily than they could show the defendant’s procurement of the witness’s absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings. We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon’s affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious. * * * We affirm the judgment of the Supreme Court of Washington in No. 05–5224. We reverse the judgment of the Supreme Court of Indiana in No. 05–5705, and remand the case to that Court for proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate. Footnote 2 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in Crawford v. Washington, 541 U. S. 36 (2004), therefore, our hold- ing today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are “testimonial.” Footnote 3 See, e.g., State v. Webb, 2 N. C. 103, 103–104 (Super. L. & Eq. 1794) (per curiam) (excluding deposition taken in absence of the accused); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam) (excluding prior testimony of deceased witness); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821) (admitting written deposition of deceased deponent, because defendant had the opportunity to cross-examine); Finn v. Commonwealth, 26 Va. 701, 707–708 (1827) (excluding prior testimony of a witness still alive, though outside the jurisdiction); State v. Hill, 20 S. C. L. 607 (App. 1835) (excluding deposition of deceased victim taken in absence of the accused); Commonwealth v. Richards, 35 Mass. 434, 436–439 (1837) (excluding preliminary examination testimony of deceased witness because the witness’s precise words were not available); Bostick v. State, 22 Tenn. 344 (1842) (admitting deposition of deceased where defendant declined opportunity to cross-examine); People v. Newman, 5 Hill 295 (N. Y. Sup. Ct. 1843) (per curiam) (excluding prior trial testimony of witness who was still alive); State v. Campbell, 30 S. C. L. 124, 125 (App. L. 1844) (excluding deposition taken in absence of the accused); State v. Valentine, 29 N. C. 225 (1847) (per curiam) (admitting preliminary examination testimony of decedent where defendant had opportunity to cross-examine); Kendrick v. State, 29 Tenn. 479, 491 (1850) (admitting testimony of deceased witness at defendant’s prior trial); State v. Houser, 26 Mo. 431, 439–441 (1858) (excluding deposition of deponent who was still alive). Footnote 4 “Roberts condition[ed] the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ ” Crawford, 541 U. S., at 60 (quoting Roberts, 448 U. S., at 66). We overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements. Footnote 5 The dissent criticizes our test for being “neither workable nor a targeted attempt to reach the abuses forbidden by the [Confrontation] Clause,” post, at 9 (opinion of Thomas, J.). As to the former: We have acknowledged that our holding is not an “exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation,” supra, at 7, but rather a resolution of the cases before us and those like them. For those cases, the test is objective and quite “workable.” The dissent, in attempting to formulate an exhaustive classification of its own, has not provided anything that deserves the description “workable”—unless one thinks that the distinction between “formal” and “informal” statements, see post, at 4–5, qualifies. And the dissent even qualifies that vague distinction by acknowledging that the Confrontation Clause “also reaches the use of technically informal statements when used to evade the formalized process,” post, at 5, and cautioning that the Clause would stop the State from “us[ing] out-of-court statements as a means of circumventing the literal right of confrontation,” post, at 6. It is hard to see this as much more “predictable,” ibid., than the rule we adopt for the narrow situations we address. (Indeed, under the dissent’s approach it is eminently arguable that the dissent should agree, rather than disagree, with our disposition in Hammon v. Indiana, No. 05–5705.) As for the charge that our holding is not a “targeted attempt to reach the abuses forbidden by the [Confrontation] Clause,” which the dissent describes as the depositions taken by Marian magistrates, characterized by a high degree of formality, see post, at 2–3: We do not dispute that formality is indeed essential to testimonial utterance. But we no longer have examining Marian magistrates; and we do have, as our 18th-century forebears did not, examining police officers, see L. Friedman, Crime and Punishment in American History 67–68 (1993)—who perform investigative and testimonial functions once performed by examining Marian magistrates, see J. Langbein, The Origins of Adversary Criminal Trial 41 (2003). It imports sufficient formality, in our view, that lies to such officers are criminal offenses. Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction. Cf. Kyllo v. United States, 533 U. S. 27 (2001). Footnote 6 Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. Investigations of past crimes prevent future harms and lead to necessary arrests. While prosecutors may hope that inculpatory “nontestimonial” evidence is gathered, this is essentially beyond police control. Their saying that an emergency exists cannot make it be so. The Confrontation Clause in no way governs police conduct, because it is the trial use of, not the investigatory collection of, ex parte testimonial statements which offends that provision. But neither can police conduct govern the Confrontation Clause; testimonial statements are what they are.
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547.US.250
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Seeking to convince the United States Postal Service to incorporate multiline optical scanning technology, a company (REI), which manufactured multiline optical readers, commenced an extensive lobbying and public-relations campaign. In the end, the Postal Service begrudgingly embraced the multiline technology, but awarded the lucrative equipment contract to a competing firm. Subsequently, Postal Service inspectors investigated REI and its chief executive, respondent Moore, for their alleged involvement in a consulting-firm kickback scandal and for their alleged improper role in the search for a new Postmaster General. Urged at least in part by the inspectors to bring criminal charges, a federal prosecutor tried REI and its top officials. But, finding a complete lack of evidence connecting them to any wrongdoing, the District Court acquitted the defendants. Moore then filed an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, against the federal prosecutor and petitioner postal inspectors, arguing, as relevant here, that they had engineered the prosecution in retaliation for his lobbying efforts. The claims against the prosecutor were dismissed in accordance with the absolute immunity for prosecutorial judgment. Ultimately, the entire suit was dismissed, but the Court of Appeals reinstated the retaliatory-prosecution claim against the inspectors. Back in District Court, the inspectors moved for summary judgment, claiming that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity. The District Court denied the motion, and the Court of Appeals affirmed. Held: A plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges. Pp. 5–15. (a) As a general matter, this Court has held that the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out. Crawford-El v. Britton, 523 U. S. 574, 592. When nonretaliatory grounds are insufficient to provoke the adverse consequences, retaliation is subject to recovery as the but-for cause of official injurious action offending the Constitution, see, e.g., id., at 593, and a vengeful federal officer is subject to damages under Bivens. Pp. 5–6. (b) Although a Bivens (or 42 U. S. C. §1983) plaintiff must show a causal connection between a defendant’s retaliatory animus and subsequent injury in any retaliation action, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty which can be overcome by a showing of the absence of probable cause. In an ordinary retaliation case, the evidence of motive and injury are sufficient for a circumstantial demonstration that the one caused the other, and the causation is understood to be but-for causation, without which the adverse action would not have been taken. When the claimed retaliation is, however, a criminal charge, the action will differ in two ways. First, evidence showing whether there was probable cause for the criminal charge will be highly valuable circumstantial evidence to prove or disprove retaliatory causation. Demonstrating a lack of probable cause will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that the prosecution would have occurred even without a retaliatory motive. Second, since the defendant in a retaliatory-prosecution case will not be the prosecutor, who has immunity, but an official who allegedly influenced the prosecutorial decision, the causal connection required is not between the retaliatory animus of one person and that person’s own injurious action, as it is in the ordinary retaliation case, but between the retaliatory animus of one person and the adverse action of another. Because evidence of an inspector’s animus does not necessarily show that the inspector induced the prosecutor to act when he would not have pressed charges otherwise and because of the longstanding presumption of regularity accorded prosecutorial decisionmaking, a showing of the absence of probable cause is needed to bridge the gap between the nonprosecuting government agent’s retaliatory motive and the prosecutor’s injurious action and to rebut the presumption. Pp. 6–13. (c) The significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. Though not necessarily dispositive, the absence of probable cause along with a retaliatory motive on the part of the official urging prosecution are reasonable grounds to suspend the presumption of regularity behind the charging decision and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor’s decision to go forward. Pp. 13–15. 388 F. 3d 871, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined. Roberts, C. J., and Alito, J., took no part in the consideration or decision of the case.
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This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven. I In the 1980’s, respondent William G. Moore, Jr., was the chief executive of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader for interpreting multiple lines of text. Although REI had received some $50 million from the United States Postal Service to develop this technology for reading and sorting mail, the Postmaster General and other top officials of the Postal Service were urging mailers to use nine-digit zip codes (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail automatically by reading just that line. Besides Moore, who obviously stood to gain financially from the adoption of multiline technology, some Members of Congress and Government research officers had reservations about the Postal Service’s Zip + 4 policy and its intended reliance on single-line readers. Critics maligned single-line scanning technology, objected to the foreign sources of single-line scanners, decried the burden of remembering the four extra numbers,[Footnote 1] and echoed the conclusion reached by the United States Office of Technology Assessment, that use of the single-line scanners in preference to multiliners would cost the Postal Service $1 million a day in operational losses. Moore built on this opposition to Zip + 4, by lobbying Members of Congress, testifying before congressional committees, and supporting a “Buy American” rider to the Postal Service’s 1985 appropriations bill. Notwithstanding alleged requests by the Postmaster General to be quiet, REI followed its agenda by hiring a public-relations firm, Gnau and Associates, Inc. (GAI), which one of the Postal Service’s governors, Peter Voss, had recommended. The campaign succeeded, and in July 1985 the Postal Service made what it called a “mid-course correction” and embraced multiline technology. Brief for Respondent 4. But the change of heart did not extend to Moore and REI, for the Service’s ensuing order of multiline equipment, valued somewhere between $250 million and $400 million went to a competing firm. Not only did REI lose out on the contract, but Moore and REI were soon entangled in two investigations by Postal Service inspectors. The first looked into the purported payment of kickbacks by GAI to Governor Voss for Voss’s recommendations of GAI’s services, as in the case of REI; the second sought to document REI’s possibly improper role in the search for a new Postmaster General. Notwithstanding very limited evidence linking Moore and REI to any wrongdoing, an Assistant United States Attorney decided to bring criminal charges against them, and in 1988 the grand jury indicted Moore, REI, and REI’s vice president. At the close of the Government’s case, after six weeks of trial, however, the District Court concluded that there was a “complete lack of direct evidence” connecting the defendants to any of the criminal wrongdoing alleged, and it granted the REI defendants’ motion for judgment of acquittal. United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596 (DC 1989). Moore then brought an action in the Northern District of Texas for civil liability under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),[Footnote 2] against the prosecutor and the five postal inspectors who are petitioners here (a sixth having died). His complaint raised five causes of action, only one of which is relevant here, the claim that the prosecutor and the inspectors had engineered his criminal prosecution in retaliation for criticism of the Postal Service, thus violating the First Amendment. In the course of these proceedings Moore has argued, among other things, that the postal inspectors launched a criminal investigation against him well before they had any inkling of either of the two schemes mentioned above, that the inspectors targeted him for his lobbying activities, and that they pressured the United States Attorney’s Office to have him indicted. Moore also sought recovery from the United States under the Federal Tort Claims Act (FTCA). The District Court dismissed the claims against the Assistant United States Attorney in accordance with the absolute immunity for prosecutorial judgment, and rejected an abuse-of-process claim against the inspectors. Moore v. Valder, Civil Action No. 3:91–CV–2491–G (ND Tex., Sept. 21, 1992).[Footnote 3] The claims remaining were transferred to the District Court for the District of Columbia, where Moore’s suit was dismissed in its entirety, Civ. Nos. 92–2288 (NHJ), 93–0324 (NHJ), 1993 WL 405785 (Sept. 24, 1993), only to have the Court of Appeals for the District of Columbia Circuit reinstate the retaliatory-prosecution claim. Moore v. Valder, 65 F. 3d 189 (1995). The District Court then permitted limited discovery on that matter so far as the inspectors were involved, but again dismissed the remaining charges against the United States and the prosecutor. Moore v. Valder, Civil Action No. 92–2288 (NHJ) et al., Record, Tab No. 32 (Memorandum Opinion, Feb. 5, 1998). Although Moore succeeded in having the District of Columbia Circuit reinstate his FTCA claim against the United States, the dismissal of his claims against the prosecutor was affirmed. Moore v. United States, 213 F. 3d 705 (2000). With the remainder of the case back in District Court, the inspectors moved for summary judgment, urging that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity from a retaliatory-prosecution suit. The District Court denied the motion, and the Court of Appeals affirmed. 388 F. 3d 871 (2004). The Courts of Appeals have divided on the issue of requiring evidence of a lack of probable cause in 42 U. S. C. §1983 and Bivens retaliatory-prosecution suits. Some Circuits burden plaintiffs with the obligation to show its absence. See, e.g., Wood v. Kesler, 323 F. 3d 872, 883 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252, 260 (CA5 2002); Mozzochi v. Borden, 959 F. 2d 1174, 1179–1180 (CA2 1992). Others, including the District of Columbia Circuit, impose no such requirement. See, e.g., Poole v. County of Otero, 271 F. 3d 955, 961 (CA10 2001); Haynesworth v. Miller, 820 F. 2d 1245, 1256–1257 (CADC 1987). We granted certiorari, 545 U. S. ___ (2005), to resolve the Circuit split and now reverse. II Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right,” Crawford-El v. Britton, 523 U. S. 574, 588, n. 10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his “constitutionally protected speech”). Some official actions adverse to such a speaker might well be unexceptionable if taken on other grounds, but when nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution. See Crawford-El, supra, at 593; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283–284 (1977) (adverse action against government employee cannot be taken if it is in response to the employee’s “exercise of constitutionally protected First Amendment freedoms”). When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens. See 403 U. S., at 397. III Despite a procedural history portending another Jarndyce v. Jarndyce,[Footnote 4] the issue before us is straightforward: whether a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges.[Footnote 5] A The inspectors argue on two fronts that absence of probable cause should be an essential element. Without such a requirement, they first say, the Bivens claim is too readily available. A plaintiff can afflict a public officer with disruption and expense by alleging nothing more, in practical terms, than action with a retaliatory animus, a subjective condition too easy to claim and too hard to defend against. Brief for Petitioners 21–23; see also National Archives and Records Admin. v. Favish, 541 U. S. 157, 175 (2004) (allegations of government misconduct are “ ‘easy to allege and hard to disprove’ ”). In the inspectors’ view, some “objective” burden must be imposed on these plaintiffs, simply to filter out the frivolous. The second argument complements the first, for the inspectors believe that the traditional tort of malicious prosecution tells us what the objective requirement should be. Brief for Petitioners 24–29. In an action for malicious prosecution after an acquittal, a plaintiff must show that the criminal action was begun without probable cause for charging the crime in the first place; the inspectors see retaliatory prosecution under Bivens as a close cousin of malicious prosecution under common law, making the latter’s no-probable-cause requirement a natural feature of the constitutional tort. See Heck v. Humphrey, 512 U. S. 477, 483–485, and 484, n. 4 (1994). B In fact, we think there is a fair argument for what the inspectors call an “objective” fact requirement in this type of case, but the nub of that argument differs from the two they set out, which we will deal with only briefly. As for the invitation to rely on common-law parallels, we certainly are ready to look at the elements of common-law torts when we think about elements of actions for constitutional violations, see Carey v. Piphus, 435 U. S. 247, 258 (1978), but the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts. See, e.g., Albright v. Oliver, 510 U. S. 266, 277, n. 1 (1994) (Ginsburg, J., concurring); Bivens, supra, at 394; cf. Baker v. McCollan, 443 U. S. 137, 146 (1979). And in this instance we could debate whether the closer common-law analog to retaliatory prosecution is malicious prosecution (with its no-probable-cause element) or abuse of process (without it). Compare Heck, 512 U. S., at 483–485, and 484, n. 4 with id., at 493–496 (Souter, J., concurring in judgment). Nor is there much leverage in the fear that without a filter to screen out claims federal prosecutors and federal courts will be unduly put upon by the volume of litigation. The basic concern is fair enough, but the slate is not blank. Over the past 25 years fewer than two dozen damages actions for retaliatory prosecution under Bivens or §1983 have come squarely before the Federal Courts of Appeals, and there is no disproportion of those cases in Circuits that do not require showing an absence of probable cause.[Footnote 6] C It is, instead, the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement espoused by the inspectors. Although a Bivens (or §1983) plaintiff must show a causal connection between a defendant’s retaliatory animus and subsequent injury in any sort of retaliation action, see Crawford-El, 523 U. S., at 593; Mt. Healthy, 429 U. S., at 285–287, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty that can be understood by comparing the requisite causation in ordinary retaliation claims, where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, with causation in a case like this one. Take the example of a public employee’s claim that he was fired for speech criticizing the government. See, e.g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 566–567 (1968) (allegation that a school board dismissed a teacher for writing a public letter critical of the board’s financial administration). While the employee plaintiff obviously must plead and prove adverse official action in retaliation for making the statements, our discussions of the elements of the constitutional tort do not specify any necessary details about proof of a connection between the retaliatory animus and the discharge, which will depend on the circumstances. Cf. Crawford-El, supra, at 593 (“[A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation—there must also be evidence of causation”). The cases have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other. See, e.g., Mt. Healthy, supra, at 287; see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 270, n. 21 (1977). It is clear, moreover, that the causation is understood to be but-for causation, without which the adverse action would not have been taken; we say that upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee). See Mt. Healthy, 429 U. S., at 287. If there is a finding that retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind. See ibid. It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway. See Crawford-El, supra, at 593; Mt. Healthy, supra, at 285–286. When the claimed retaliation for protected conduct is a criminal charge, however, a constitutional tort action will differ from this standard case in two ways. Like any other plaintiff charging official retaliatory action, the plaintiff in a retaliatory-prosecution claim must prove the elements of retaliatory animus as the cause of injury, and the defendant will have the same opportunity to respond to a prima facie case by showing that the action would have been taken anyway, independently of any retaliatory animus. What is different about a prosecution case, however, is that there will always be a distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge. Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive. This alone does not mean, of course, that a Bivens or §1983 plaintiff should be required to plead and prove no probable cause, but it does mean that litigating probable cause will be highly likely in any retaliatory-prosecution case, owing to its powerful evidentiary significance.[Footnote 7] The second respect in which a retaliatory-prosecution case is different also goes to the causation that a Bivens plaintiff must prove; the difference is that the requisite causation between the defendant’s retaliatory animus and the plaintiff’s injury is usually more complex than it is in other retaliation cases, and the need to show this more complex connection supports a requirement that no probable cause be alleged and proven. A Bivens (or §1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute, Imbler v. Pachtman, 424 U. S. 409, 431 (1976).[Footnote 8] Instead, the defendant will be a non-prosecutor, an official, like an inspector here, who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute.[Footnote 9] The consequence is that a plaintiff like Moore must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging. Thus, the causal connection required here is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another. See 213 F. 3d, at 710 (“In order to find that a defendant procured a prosecution, the plaintiff must establish ‘a chain of causation’ linking the defendant’s actions with the initiation of criminal proceedings”); see also Barts v. Joyner, 865 F. 2d 1187, 1195 (CA11 1989) (plaintiff seeking damages incident to her criminal prosecution would have to show that the police, who allegedly acted in violation of law in securing her arrest, unduly pressured or deceived prosecutors); Dellums v. Powell, 566 F. 2d 167, 192–193 (CADC 1977) (where allegation of misconduct is directed at police, a malicious-prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by police); cf. Smiddy v. Varney, 665 F. 2d 261, 267 (CA9 1981) (“[W]here police officers do not act maliciously or with reckless disregard for the rights of an arrested person, they are not liable for damages suffered by the arrested person after a district attorney files charges unless the presumption of independent judgment by the district attorney is rebutted”). Herein lies the distinct problem of causation in cases like this one. Evidence of an inspector’s animus does not necessarily show that the inspector induced the action of a prosecutor who would not have pressed charges otherwise. Moreover, to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor’s mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 489–490 (1999); United States v. Armstrong, 517 U. S. 456, 464–466 (1996). And this presumption that a prosecutor has legitimate grounds for the action he takes is one we do not lightly discard, given our position that judicial intrusion into executive discretion of such high order should be minimal, see Wayte v. United States, 470 U. S. 598, 607–608 (1985). Some sort of allegation, then, is needed both to bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity. And at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured the plaintiff. The connection, to be alleged and shown, is the absence of probable cause. It would be open to us, of course, to give no special prominence to an absence of probable cause in bridging the causal gap, and to address this distinct causation concern at a merely general level, leaving it to such pleading and proof as the circumstances allow. A prosecutor’s disclosure of retaliatory thinking on his part, for example, would be of great significance in addressing the presumption and closing the gap. So would evidence that a prosecutor was nothing but a rubber stamp for his investigative staff or the police. Cf. Mt. Healthy, 429 U. S., at 281–283. (evidence that the board of education, which formally decided not to rehire a teacher, was only nominally distinct from the school superintendent, who allegedly bore the retaliatory animus). In fact, though, these examples are likely to be rare and consequently poor guides in structuring a cause of action. In most cases, for instance, it would be unrealistic to expect a prosecutor to reveal his mind even to the degree that this record discloses, with its reported statement by the prosecutor that he was not galvanized by the merits of the case, but sought the indictment against Moore because he wanted to attract the interest of a law firm looking for a tough trial lawyer.[Footnote 10] Accordingly, the significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. True, it is not necessarily dispositive: showing an absence of probable cause may not be conclusive that the inducement succeeded, and showing its presence does not guarantee that inducement was not the but-for fact in a prosecutor’s decision. But a retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor’s decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision, see Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) (emphasizing that “so long as the prosecutor has probable cause,” the charging decision is generally discretionary), and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor’s decision to bring the charge. Our sense is that the very significance of probable cause means that a requirement to plead and prove its absence will usually be cost free by any incremental reckoning. The issue is so likely to be raised by some party at some point that treating it as important enough to be an element will be a way to address the issue of causation without adding to time or expense. See n. 7, supra. In this case, for example, Moore cannot succeed in the retaliation claim without showing that the Assistant United States Attorney was worse than just an unabashed careerist, and if he can show that the prosecutor had no probable cause, the claim of retaliation will have some vitality. In sum, the complexity of causation in a claim that prosecution was induced by an official bent on retaliation should be addressed specifically in defining the elements of the tort. Probable cause or its absence will be at least an evidentiary issue in practically all such cases. Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff’s case, and we hold that it must be pleaded and proven. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The Chief Justice and Justice Alito took no part in the consideration or decision of this case. Footnote 1 See, e.g., Seaberry, Durenberger Begins Campaign Against Nine-Digit Zip Code, Washington Post, Feb. 24, 1981, p. E4 (describing Senator David Durenberger’s reference to the Zip + 4 campaign as “ ‘a mnemonic plague of contagious digititous’ ”). Footnote 2 “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U. S. 14, 18 (1980). Though more limited in some respects not relevant here, a Bivens action is the federal analog to suits brought against state officials under Rev. Stat. §1979, 42 U. S. C. §1983. See Wilson v. Layne, 526 U. S. 603, 609 (1999); see also Waxman & Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L. J. 2195, 2208 (2003) (“Section 1983 applies … to state and local officers, [and] the Supreme Court in Bivens . . . inferred a parallel damages action against federal officers”). Footnote 3 Moore and his wife had originally filed this complaint jointly. Her claims were dismissed for lack of standing. Footnote 4 See 2 C. Dickens, Bleak House 85 (1853). Footnote 5 Moore contends that we (like the Court of Appeals before us) exceed our appellate jurisdiction when we address the issue of probable cause, see Brief for Respondent 37–39, but his argument is mistaken. It is true that the disagreement over a no-probable-cause requirement arose on the inspectors’ motion for summary judgment on their qualified-immunity defense; Moore stresses that an interlocutory appeal can be taken from the rejection of qualified immunity at the summary-judgment stage only on questions turning on the definition of the violation, not on the sufficiency of the evidence to show that a defendant is in fact entitled to the immunity claimed. See Mitchell v. Forsyth, 472 U. S. 511, 528 (1985). Moore says that the issue of probable cause or its absence is simply an evidentiary matter going to entitlement in fact. But the inspectors are making more than a claim about the evidence in this case: they are arguing that we should hold that a showing of no probable cause is an element of the kind of claim Moore is making against them. In agreeing with the inspectors, we are addressing a requirement of causation, which Moore must plead and prove in order to win, and our holding does not go beyond a definition of an element of the tort, directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal. See ibid.; see also Crawford-El v. Britton, 523 U. S. 574, 588, 592–593 (1998); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285–286 (1977). Footnote 6 In fact, many of the appellate challenges have been brought in the Second, Fifth, and Eleventh Circuits, all of which require plaintiffs to show an absence of probable cause. See, e.g., Izen v. Catalina, 398 F. 3d 363 (CA5 2005) (per curiam); Wood v. Kesler, 323 F. 3d 872 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252 (CA5 2002); Singer v. Fulton County Sheriff, 63 F. 3d 110 (CA2 1995); Post v. Fort Lauderdale, 7 F. 3d 1552 (CA11 1993); Mozzochi v. Borden, 959 F. 2d 1174 (CA2 1992); Magnotti v. Kuntz, 918 F. 2d 364 (CA2 1990). Footnote 7 Indeed, even though the Court of Appeals in this case held that plaintiffs do not have to show an absence of probable cause in order to make retaliatory-prosecution claims, it nevertheless acknowledged probable cause’s significance in such suits. See 388 F. 3d 871, 881 (CADC 2004) (“Given that probable cause ordinarily suffices to initiate a prosecution, that showing will be enough in most cases to establish that prosecution would have occurred absent bad intent. A Bivens recovery remains possible, however, in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the prosecution would not have occurred but for the officials’ retaliatory animus”). Footnote 8 An action could still be brought against a prosecutor for conduct taken in an investigatory capacity, to which absolute immunity does not extend. See Buckley v. Fitzsimmons, 509 U. S. 259, 274–276 (1993) (no absolute immunity when prosecutor acts in administrative capacity); Burns v. Reed, 500 U. S. 478, 492–495 (1991) (absolute immunity does not attach when a prosecutor offers legal advice to the police regarding interrogation practices). In fact, Moore’s complaint charged the prosecutor with acting in an investigative as well as in a prosecutorial capacity, see App. 45, but dismissal of the complaint as against the prosecutor was affirmed in 213 F. 3d 705, 710 (CADC 2000), and no claim against him is before us now. Footnote 9 No one here claims that simply conducting a retaliatory investigation with a view to promote a prosecution is a constitutional tort. That is not part of Moore’s complaint. See App. 33–34, 38–45. Whether the expense or other adverse consequences of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us. Footnote 10 Some may suggest that we should structure a cause of action in the alternative, dispensing with a requirement to show no probable cause when a plaintiff has evidence of a direct admission by a prosecutor that, irrespective of probable cause, the prosecutor’s sole purpose in initiating a criminal prosecution was to acquiesce to the inducements of other government agents, who themselves harbored retaliatory animus. Cf. United States v. Armstrong, 517 U. S. 456, 469, n. 3 (1996) (leaving open the question “whether a [criminal] defendant must satisfy the similarly situated requirement in a case ‘involving direct admissions by [prosecutors] of discriminatory purpose’ ” (brackets in original)). But this would seem a little like proposing that retirement plans include the possibility of winning the lottery. Unambiguous admissions of successful inducement are likely to be rare, and hassles over the adequacy of admissions will be the predictable result, if any exemption to a no-probable-cause requirement is allowed.
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547.US.319
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At petitioner’s South Carolina trial for murder and related crimes, the prosecution relied heavily on forensic evidence that strongly supported petitioner’s guilt. Petitioner sought to undermine the State’s forensic evidence by introducing expert testimony suggesting that the evidence had been contaminated and that the police had engaged in a plot to frame him. Petitioner also sought to introduce evidence that another man, Jimmy McCaw White, had been in the victim’s neighborhood on the morning of the assault and that White had either acknowledged petitioner’s innocence or admitted to committing the crimes himself. In White’s pretrial testimony, he denied making the incriminating statements and provided an alibi for the time of the assault. The trial court excluded petitioner’s third-party guilt evidence citing the State Supreme Court’s Gregory decision, which held such evidence admissible if it raises a reasonable inference as to the defendant’s own innocence, but inadmissible if it merely casts a bare suspicion or raises a conjectural inference as to another’s guilt. Affirming the trial court, the State Supreme Court cited both Gregory and its later decision in Gay, and held that where there is strong forensic evidence of an appellant’s guilt, proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence. Applying this standard, the court held that petitioner could not overcome the forensic evidence against him. Held: A criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict. “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” United States v. Scheffer, 523 U. S. 303, 308. This latitude, however, has limits. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U. S. 683, 690. This right is abridged by evidence rules that “infring[e] upon a weighty interest of the accused” and are “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, supra, at 308. While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. An application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. Such rules are widely accepted and are not challenged here. In Gregory, the South Carolina Supreme Court adopted and applied a rule intended to be of this type. In Gay and this case, however, that court radically changed and extended the Gregory rule by holding that, where there is strong evidence of a defendant’s guilt, especially strong forensic evidence, proffered evidence about a third party’s alleged guilt may (or perhaps must) be excluded. Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution’s case: If the prosecution’s case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues. Furthermore, as applied below, the rule seems to call for little, if any, examination of the credibility of the prosecution’s witnesses or the reliability of its evidence. By evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied below did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end served by the rule. Thus, the rule violates a criminal defendant’s right to have “ ‘a meaningful opportunity to present a complete defense.’ ” Crane, supra, at 690. Pp. 4–11. 361 S. C. 333, 605 S. E. 2d 19, vacated and remanded. Alito, J., delivered the opinion for a unanimous Court.
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This case presents the question whether a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict. I On the morning of December 31, 1989, 86-year-old Mary Stewart was beaten, raped, and robbed in her home. She later died of complications stemming from her injuries. Petitioner was convicted by a South Carolina jury of murder, first-degree criminal sexual conduct, first-degree burglary, and robbery, and he was sentenced to death. State v. Holmes, 320 S. C. 259, 262, 464 S. E. 2d 334, 336 (1995). The South Carolina Supreme Court affirmed his convictions and sentence, and this Court denied certiorari. Ibid., cert. denied, 517 U. S. 1248 (1996). Upon state postconviction review, however, petitioner was granted a new trial. 361 S. C. 333, 335, n. 1, 605 S. E. 2d 19, 20, n. 1 (2004). At the second trial, the prosecution relied heavily on the following forensic evidence: “(1) [Petitioner’s] palm print was found just above the door knob on the interior side of the front door of the victim’s house; (2) fibers consistent with a black sweatshirt owned by [petitioner] were found on the victim’s bed sheets; (3) matching blue fibers were found on the victim’s pink nightgown and on [petitioner’s] blue jeans; (4) microscopically consistent fibers were found on the pink nightgown and on [petitioner’s] underwear; (5) [petitioner’s] underwear contained a mixture of DNA from two individuals, and 99.99% of the population other than [petitioner] and the victim were excluded as contributors to that mixture; and (6) [petitioner’s] tank top was found to contain a mixture of [petitioner’s] blood and the victim’s blood.” Id., at 343, 605 S. E. 2d, at 24. In addition, the prosecution introduced evidence that petitioner had been seen near Stewart’s home within an hour of the time when, according to the prosecution’s evidence, the attack took place. Id., at 337–338, 343, 605 S. E. 2d, at 21, 24. As a major part of his defense, petitioner attempted to undermine the State’s forensic evidence by suggesting that it had been contaminated and that certain law enforcement officers had engaged in a plot to frame him. Id., at 339, 605 S. E. 2d, at 22. Petitioner’s expert witnesses criticized the procedures used by the police in handling the fiber and DNA evidence and in collecting the fingerprint evidence. App. 299–311, 313–323. Another defense expert provided testimony that petitioner cited as supporting his claim that the palm print had been planted by the police. Id., at 326–327. Petitioner also sought to introduce proof that another man, Jimmy McCaw White, had attacked Stewart. 361 S. C., at 340, 605 S. E. 2d, at 22. At a pretrial hearing, petitioner proffered several witnesses who placed White in the victim’s neighborhood on the morning of the assault, as well as four other witnesses who testified that White had either acknowledged that petitioner was “ ‘innocent’ ” or had actually admitted to committing the crimes. Id., at 340–342, 605 S. E. 2d, at 22–23. One witness recounted that when he asked White about the “word … on the street” that White was responsible for Stewart’s murder, White “put his head down and he raised his head back up and he said, well, you know I like older women.” App. 119. According to this witness, White added that “he did what they say he did” and that he had “no regrets about it at all.” Id., at 120. Another witness, who had been incarcerated with White, testified that White had admitted to assaulting Stewart, that a police officer had asked the witness to testify falsely against petitioner, and that employees of the prosecutor’s office, while soliciting the witness’ cooperation, had spoken of manufacturing evidence against petitioner. Id., at 38–50. White testified at the pretrial hearing and denied making the incriminating statements. 361 S. C., at 341–342, 605 S. E. 2d, at 23. He also provided an alibi for the time of the crime, but another witness refuted his alibi. Id., at 342, 605 S. E. 2d, at 23. The trial court excluded petitioner’s third-party guilt evidence citing State v. Gregory, 198 S. C. 98, 16 S. E. 2d 532 (1941), which held that such evidence is admissible if it “ ‘raise[s] a reasonable inference or presumption as to [the defendant’s] own innocence’ ” but is not admissible if it merely “ ‘cast[s] a bare suspicion upon another’ ” or “ ‘raise[s] a conjectural inference as to the commission of the crime by another.’ ” App. 133–134 (quoting Gregory, supra, at 104, 16 S. E. 2d, at 534). On appeal, the South Carolina Supreme Court found no error in the exclusion of petitioner’s third-party guilt evidence. Citing both Gregory and its later decision in State v. Gay, 343 S. C. 543, 541 S. E. 2d 541 (2001), the State Supreme Court held that “where there is strong evidence of an appellant’s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence.” 361 S. C., at 342–343, 605 S. E. 2d, at 24. Applying this standard, the court held that petitioner could not “overcome the forensic evidence against him to raise a reasonable inference of his own innocence.” Id., at 343, 605 S. E. 2d, at 24. We granted certiorari. 545 U. S. ___ (2005). II “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” United States v. Scheffer, 523 U. S. 303, 308 (1998); see also Crane v. Kentucky, 476 U. S. 683, 689–690 (1986); Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983); Chambers v. Mississippi, 410 U. S. 284, 302–303 (1973); Spencer v. Texas, 385 U. S. 554, 564 (1967). This latitude, however, has limits. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane, supra, at 690 (quoting California v. Trombetta, 467 U. S. 479, 485 (1984); citations omitted). This right is abridged by evidence rules that “infring[e] upon a weighty interest of the accused” and are “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, supra, at 308 (quoting Rock v. Arkansas, 483 U. S. 44, 58, 56 (1987)). This Court’s cases contain several illustrations of “arbitrary” rules, i.e., rules that excluded important defense evidence but that did not serve any legitimate interests. In Washington v. Texas, 388 U. S. 14 (1967), state statutes barred a person who had been charged as a participant in a crime from testifying in defense of another alleged participant unless the witness had been acquitted. As a result, when the defendant in Washington was tried for murder, he was precluded from calling as a witness a person who had been charged and previously convicted of committing the same murder. Holding that the defendant’s right to put on a defense had been violated, we noted that the rule embodied in the statutes could not “even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury” since the rule allowed an alleged participant to testify if he or she had been acquitted or was called by the prosecution. Id., at 22–23. A similar constitutional violation occurred in Chambers v. Mississippi, supra. A murder defendant called as a witness a man named McDonald, who had previously confessed to the murder. When McDonald repudiated the confession on the stand, the defendant was denied permission to examine McDonald as an adverse witness based on the State’s “ ‘voucher’ rule,” which barred parties from impeaching their own witnesses. Id., at 294. In addition, because the state hearsay rule did not include an exception for statements against penal interest, the defendant was not permitted to introduce evidence that McDonald had made self-incriminating statements to three other persons. Noting that the State had not even attempted to “defend” or “explain [the] underlying rationale” of the “voucher rule,” id., at 297, this Court held that “the exclusion of [the evidence of McDonald’s out-of-court statements], coupled with the State’s refusal to permit [the defendant] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process,” id., at 302. Another arbitrary rule was held unconstitutional in Crane v. Kentucky, supra. There, the defendant was prevented from attempting to show at trial that his confession was unreliable because of the circumstances under which it was obtained, and neither the State Supreme Court nor the prosecution “advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence.” Id., at 691. In Rock v. Arkansas, supra, this Court held that a rule prohibiting hypnotically refreshed testimony was unconstitutional because “[w]holesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnotic recollections.” Id., at 61. By contrast, in United States v. Scheffer, supra, we held that a rule excluding all polygraph evidence did not abridge the right to present a defense because the rule “serve[d] several legitimate interests in the criminal trial process,” was “neither arbitrary nor disproportionate in promoting these ends,” and did not “implicate a sufficiently weighty interest of the defendant.” Id., at 309. While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e.g., Fed. Rule Evid. 403; Uniform Rule of Evid. 45 (1953); ALI, Model Code of Evidence Rule 303 (1942); 3 J. Wigmore, Evidence §§1863, 1904 (1904). Plainly referring to rules of this type, we have stated that the Constitution permits judges “to exclude evidence that is ‘repetitive … , only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’ ” Crane, supra, at 689–690 (quoting Delaware v. Van Arsdall, 475 U. S. 673, 679 (1986); ellipsis and brackets in original). See also Montana v. Egelhoff, 518 U. S. 37, 42 (1996) (plurality opinion) (terming such rules “familiar and unquestionably constitutional”). A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. See, e.g., 41 C. J. S., Homicide §216, pp. 56–58 (1991) (“Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded”); 40A Am. Jur. 2d, Homicide §286, pp. 136–138 (1999) (“[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged … . [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial” (footnotes omitted)). Such rules are widely accepted,* and neither petitioner nor his amici challenge them here. In Gregory, the South Carolina Supreme Court adopted and applied a rule apparently intended to be of this type, given the court’s references to the “applicable rule” from Corpus Juris and American Jurisprudence: “ ‘[E]vidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible… . [B]efore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.’ ” 198 S. C., at 104–105, 16 S. E. 2d, at 534–535 (quoting 16 C. J., Criminal Law §1085, p. 560 (1918) and 20 Am. Jur., Evidence §265, p. 254 (1939); footnotes omitted). In Gay and this case, however, the South Carolina Supreme Court radically changed and extended the rule. In Gay, after recognizing the standard applied in Gregory, the court stated that “[i]n view of the strong evidence of appellant’s guilt—especially the forensic evidence— … the proffered evidence … did not raise ‘a reasonable inference’ as to appellant’s own innocence.” Gay, 343 S. C., at 550, 541 S. E. 2d, at 545 (quoting Gregory, supra, at 104, 16 S. E. 2d, at 534, in turn quoting 16 C. J., §1085, at 560). Similarly, in the present case, as noted, the State Supreme Court applied the rule that “where there is strong evidence of [a defendant’s] guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt” may (or perhaps must) be excluded. 361 S. C., at 342, 605 S. E. 2d, at 24. Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution’s case: If the prosecution’s case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues. Furthermore, as applied in this case, the South Carolina Supreme Court’s rule seems to call for little, if any, examination of the credibility of the prosecution’s witnesses or the reliability of its evidence. Here, for example, the defense strenuously claimed that the prosecution’s forensic evidence was so unreliable (due to mishandling and a deliberate plot to frame petitioner) that the evidence should not have even been admitted. The South Carolina Supreme Court responded that these challenges did not entirely “eviscerate” the forensic evidence and that the defense challenges went to the weight and not to the admissibility of that evidence. Id., at 343, n. 8, 605 S. E. 2d, at 24, n. 8. Yet, in evaluating the prosecution’s forensic evidence and deeming it to be “strong”—and thereby justifying exclusion of petitioner’s third-party guilt evidence—the South Carolina Supreme Court made no mention of the defense challenges to the prosecution’s evidence. Interpreted in this way, the rule applied by the State Supreme Court does not rationally serve the end that the Gregory rule and its analogues in other jurisdictions were designed to promote, i.e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues. The rule applied in this case appears to be based on the following logic: Where (1) it is clear that only one person was involved in the commission of a particular crime and (2) there is strong evidence that the defendant was the perpetrator, it follows that evidence of third-party guilt must be weak. But this logic depends on an accurate evaluation of the prosecution’s proof, and the true strength of the prosecution’s proof cannot be assessed without considering challenges to the reliability of the prosecution’s evidence. Just because the prosecution’s evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case. The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant’s guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of the petitioner’s guilt. The point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant’s right to have “ ‘a meaningful opportunity to present a complete defense.’ ” Crane, 476 U. S., at 690 (quoting Trombetta, 467 U. S., at 485). III For these reasons, we vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. * See, e.g., Smithart v. State, 988 P. 2d 583, 586–587 (Alaska 1999); Shields v. State, 357 Ark. 283, 287–288, 166 S. W. 3d 28, 32 (2004); People v. Hall, 41 Cal. 3d 826, 833, 718 P. 2d 99, 103–104 (1986) (en banc); People v. Mulligan, 193 Colo. 509, 517–518, 568 P. 2d 449, 456–457 (1977) (en banc); State v. West, 274 Conn. 605, 624–627, 877 A. 2d 787, 802–803 (2005); Winfield v. United States, 676 A. 2d 1 (DC App. 1996) (en banc); Klinect v. State, 269 Ga. 570, 573, 501 S. E. 2d 810, 813–814 (1998); State v. Rabellizsa, 79 Haw. 347, 350–351, 903 P. 2d 43, 46–47 (1995); People v. Fort, 248 Ill. App. 3d 301, 314, 618 N. E. 2d 445, 455 (1993); State v. Adams, 280 Kan. 494, 504–507, 124 P. 3d 19, 27–29 (2005); Beaty v. Commonwealth, 125 S. W. 3d 196, 207–208 (Ky. 2003); State v. Dechaine, 572 A. 2d 130, 134 (Me. 1990); Commonwealth v. Scott, 408 Mass. 811, 815–816, 564 N. E. 2d 370, 374–375 (1990); State v. Jones, 678 N. W. 2d 1, 16–17 (Minn. 2004); Moore v. State, 179 Miss. 268, 274–275, 175 So. 183, 184 (1937); State v. Chaney, 967 S. W. 2d 47, 55 (Mo. 1998) (en banc); State v. Cotto, 182 N. J. 316, 332–333, 865 A. 2d 660, 669–670 (2005); Gore v. State, 2005 OK CR 14, ¶¶13–24, 119 P. 3d 1268, 1272–1276; State v. Gregory, 198 S. C. 98, 104–105, 16 S. E. 2d 532, 534–535 (1941); Wiley v. State, 74 S. W. 3d 399, 405–408 (Tex. Crim. App. 2002); State v. Grega, 168 Vt. 363, 375, 721 A. 2d 445, 454 (1998); State v. Thomas, 150 Wash. 2d 821, 856–858, 83 P. 3d 970, 988 (2004) (en banc); State v. Parr, 207 W. Va. 469, 475, 534 S. E. 2d 23, 29 (2000) (per curiam); State v. Denny, 120 Wis. 2d 614, 622–625, 357 N. W. 2d 12, 16–17 (Wis. App. 1984).
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546.US.21
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After this Court ruled that the term “workweek” in the Fair Labor Standards Act of 1938 (FLSA) included the time employees spent walking from time clocks near a factory entrance to their workstations, Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, 691–692, Congress passed the Portal-to-Portal Act of 1947, which, inter alia, excepted from FLSA coverage walking on the employer’s premises to and from the location of the employee’s “principal activity or activities,” §4(a)(1), and activities that are “preliminary or postliminary” to “said principal activity or activities,” §4(a)(2). The Act did not otherwise change this Court’s descriptions of “work” and “workweek” or define “workday.” Regulations promulgated by the Secretary of Labor shortly thereafter concluded that the Act did not affect the computation of hours within a “workday,” 29 CFR §790.6(a), which includes “the period between the commencement and completion” of the “principal activity or activities,” §790.6(b). Eight years after the enactment of the Portal-to-Portal Act and these interpretative regulations, the Court explained that the “term ‘principal activity or activities’ … embraces all activities which are ‘an integral and indispensable part of the principal activities,’ ” including the donning and doffing of specialized protective gear “before or after the regular work shift, on or off the production line.” Steiner v. Mitchell, 350 U. S. 247, 256. In No. 03–1238, respondent employees filed a class action seeking compensation for time spent donning and doffing required protective gear and walking from the locker rooms to the production floor of a meat processing facility owned by petitioner IBP, Inc. (IBP), and back. The District Court found the activities compensable, and the Ninth Circuit affirmed. In No. 04–66, petitioner employees sought compensation for time spent donning and doffing required protective gear at a poultry processing plant operated by respondent Barber Foods, Inc. (Barber), as well as the attendant walking and waiting times. Barber prevailed on the walking and waiting claims. On appeal, the First Circuit found those times preliminary and postliminary activities excluded from FLSA coverage by §§4(a)(1) and (2) of the Portal-to-Portal Act. Held: 1. The time respondents in No. 03–1238 spend walking between changing and production areas is compensable under the FLSA. Pp. 7–15. (a) Section 4(a)(1)’s text does not exclude such time from the FLSA’s scope. IBP claims that, because donning is not the “principal activity” that starts the workday, walking occurring immediately after donning and immediately before doffing is not compensable. That argument, which in effect asks for a third category of activities—those that are “integral and indispensable” to a “principal activity” and thus not excluded from coverage by §4(a)(2), but are not themselves “principal activities” as defined by §4(a)(1)—is foreclosed by Steiner, which made clear that §4 does not remove activities that are “integral and indispensable” to “principal activities” from FLSA coverage precisely because such activities are themselves “principal activities.” 350 U. S., at 253. There is no plausible argument that these terms mean different things in §4(a)(2) and in §4(a)(1). Under the normal rule of statutory interpretation, identical words used in different parts of the same statute are generally presumed to have the same meaning; and in §4(a)(2)’s reference to “said principal activity or activities,” “said” is an explicit reference to the use of the identical term in §4(a)(1). Pp. 10–12. (b) Also unpersuasive is IBP’s argument that Congress’ repudiation of the Anderson holding reflects a purpose to exclude the walking time at issue. That time, which occurs after the workday begins and before it ends, is more comparable to time spent walking between two different positions on an assembly line than to the walking in Anderson, which occurred before the workday began. Pp. 12–13. (c) The relevant regulations also support this view of walking. Contrary to IBP’s claim, 29 CFR §790.6 does not strictly define the workday’s limits as the period from “whistle to whistle.” And §790.7(g), n. 49, which provides that postdonning walking time is not “necessarily” excluded from §4(a)(1)’s scope, does not mean that such time is always excluded and is insufficient to overcome clear statements in the regulations’ text that support the holding here. Pp. 13–15. 2. Because donning and doffing gear that is “integral and indispensable” to employees’ work is a “principal activity” under the statute, the continuous workday rule mandates that the time the No. 04–66 petitioners spend walking to and from the production floor after donning and before doffing, as well as the time spent waiting to doff, are not affected by the Portal-to-Portal Act, and are instead covered by the FLSA. Pp. 15–17. 3. However, §4(a)(2) excludes from the FLSA’s scope the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. Such waiting—which is two steps removed from the productive activity on the assembly line—comfortably qualifies as a “preliminary” activity. The fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are “integral and indispensable” to a “principal activity” under Steiner. No limiting principle allows this Court to conclude that the waiting time here is such an activity without also leading to the logical (but untenable) conclusion that the walking time in Anderson would also be a “principal activity” unaffected by the Portal-to-Portal Act. Title 29 CFR §790.7(h) does not support a contrary view. Pp. 17–19. No. 03–1238, 339 F. 3d 894, affirmed; No. 04–66, 360 F. 3d 274, affirmed in part, reversed in part, and remanded. Stevens, J., delivered the opinion for a unanimous Court. Together with No. 04–66, Tum et al. v. Barber Foods, Inc., dba Barber Foods, on certiorari to the United States Court of Appeals for the First Circuit.
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These consolidated cases raise questions concerning the coverage of the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947, with respect to activities of employees who must don protective clothing on the employer’s premises before they engage in the productive labor for which they are primarily hired. The principal question, which is presented in both cases, is whether the time employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04–66, is whether the time employees spend waiting to put on the protective gear is compensable under the statute. In No. 03–1238, the Court of Appeals for the Ninth Circuit answered “yes” to the first question, 339 F. 3d 894 (2003); in No. 04–66, the Court of Appeals for the First Circuit answered “no” to both questions, 360 F. 3d 274, 281 (2004). We granted certiorari to resolve the conflict. 543 U. S. ___ (2005). I As enacted in 1938, the FLSA, 29 U. S. C. §201 et seq., required employers engaged in the production of goods for commerce to pay their employees a minimum wage of “not less than 25 cents an hour,” §6(a)(1), 52 Stat. 1062, and prohibited the employment of any person for workweeks in excess of 40 hours after the second year following the legislation “unless such employee receives compensation for his employment in excess of [40] hours … at a rate not less than one and one-half times the regular rate at which he is employed,” id., §7(a)(3), at 1063. Neither “work” nor “workweek” is defined in the statute.[Footnote 1] Our early cases defined those terms broadly. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944), we held that time spent traveling from iron ore mine portals to underground working areas was compensable; relying on the remedial purposes of the statute and Webster’s Dictionary, we described “work or employment” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id., at 598; see id., at 598, n. 11. The same year, in Armour & Co. v. Wantock, 323 U. S. 126 (1944), we clarified that “exertion” was not in fact necessary for an activity to constitute “work” under the FLSA. We pointed out that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Id., at 133. Two years later, in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 (1946), we defined “the statutory workweek” to “include all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Id., at 690–691. Accordingly, we held that the time necessarily spent by employees walking from time clocks near the factory entrance gate to their workstations must be treated as part of the workweek. Id., at 691–692. The year after our decision in Anderson, Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA. Based on findings that judicial interpretations of the FLSA had superseded “long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation,” 61 Stat. 84, it responded with two statutory remedies, the first relating to “existing claims,” id., at 85–86, and the second to “future claims,” id., at 87–88. Both remedies distinguish between working time that is compensable pursuant to contract or custom and practice, on the one hand, and time that was found compensable under this Court’s expansive reading of the FLSA, on the other. Like the original FLSA, however, the Portal-to-Portal Act omits any definition of the term “work.” With respect to existing claims, the Portal-to-Portal Act provided that employers would not incur liability on account of their failure to pay minimum wages or overtime compensation for any activity that was not compensable by either an express contract or an established custom or practice.[Footnote 2] With respect to “future claims,” the Act preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under our cases: walking on the employer’s premises to and from the actual place of performance of the principal activity of the employee, and activities that are “preliminary or postliminary” to that principal activity. Specifically, Part III of the Portal-to-Portal Act, entitled “future claims,” provides in relevant part: “Sec. 4. Relief from Certain Future Claims Under the Fair Labor Standards Act of 1938 … — “(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, … on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act— “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and “(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 61 Stat. 86–87 (codified at 29 U. S. C. §254(a)). Other than its express exceptions for travel to and from the location of the employee’s “principal activity,” and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court’s earlier descriptions of the terms “work” and “workweek,” or to define the term “workday.” A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked “within” the workday. That regulation states: “[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§4] have no application” 29 CFR §790.6(a) (2005).[Footnote 3] Similarly, consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” §790.6(b). These regulations have remained in effect since 1947, see 12 Fed. Reg. 7658 (1947), and no party disputes the validity of the continuous workday rule. In 1955, eight years after the enactment of the Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the “time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide… .” Steiner v. Mitchell, 350 U. S. 247, 248 (1956). After distinguishing “changing clothes and showering under normal conditions” and stressing the important health and safety risks associated with the production of batteries, id., at 249, the Court endorsed the Court of Appeals’ conclusion that these activities were compensable under the FLSA. In reaching this result, we specifically agreed with the Court of Appeals that “the term ‘principal activity or activities’ in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an ‘integral and indispensable part of the principal activities,’ and that the activities in question fall within this category.” Id., at 252–253. Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are “performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1).” Id., at 256. The principal question presented by these consolidated cases—both of which involve required protective gear that the courts below found integral and indispensable to the employees’ work—is whether postdonning and predoffing walking time is specifically excluded by §4(a)(1). We conclude that it is not. II Petitioner in No. 03–1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass armguards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear. Production workers’ pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, IBP has also paid for four minutes of clothes- changing time.[Footnote 4] In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts. After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment. Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday.[Footnote 5] The court did not, however, allow any recovery for ordinary clothes changing and washing, or for the “donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnet[s].” App. to Pet. for Cert. in No. 03–1238, p. 65a. The District Court proceeded to apply these legal conclusions in making detailed factual findings with regard to the different groups of employees. For example, the District Court found that, under its view of what was covered by the FLSA, processing division knife users were entitled to compensation for between 12 and 14 minutes of preproduction and postproduction work, including 3.3 to 4.4 minutes of walking time. The Court of Appeals agreed with the District Court’s ultimate conclusions on these issues, but in part for different reasons. 339 F. 3d 894 (CA9 2003). After noting that the question whether activities “ ‘are an integral and indispensable part of the principal activities’ ” within the meaning of Steiner, is “context specific,” 339 F. 3d, at 902, the Court of Appeals endorsed the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear such as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being “principal activities” as defined by the Portal-to-Portal Act, but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was “ ‘de minimis as a matter of law.’ ” Id., at 904. IBP does not challenge the holding below that, in light of Steiner, the donning and doffing of unique protective gear are “principal activities” under §4 of the Portal-to-Portal Act. Moreover, IBP has not asked us to overrule Steiner. Considerations of stare decisis are particularly forceful in the area of statutory construction, especially when a unanimous interpretation of a statute has been accepted as settled law for several decades. Thus, the only question for us to decide is whether the Court of Appeals correctly rejected IBP’s contention that the walking between the locker rooms and the production areas is excluded from FLSA coverage by §4(a)(1) of the Portal-to-Portal Act. IBP argues that the text of §4(a)(1), the history and purpose of its enactment, and the Department of Labor’s interpretive guidance compel the conclusion that the Portal-to-Portal Act excludes this walking time from the scope of the FLSA. We find each of these arguments unpersuasive. Text IBP correctly points out that our decision in Steiner held only that the donning and doffing of protective gear in that case were activities “integral and indispensable” to the workers’ principal activity of making batteries. 350 U. S., at 256. In IBP’s view, a category of “integral and indispensable” activities that may be compensable because they are not merely preliminary or postliminary within the meaning of §4(a)(2) is not necessarily coextensive with the actual “principal activities” which the employee “is employed to perform” within the meaning of §4(a)(1). In other words, IBP argues that, even though the court below concluded that donning and doffing of unique protective gear are “integral and indispensable” to the employees’ principal activity, this means only that the donning and doffing of such gear are themselves covered by the FLSA. According to IBP, the donning is not a “principal activity” that starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not compensable. In effect, IBP asks us to create a third category of activities—those that are “integral and indispensable” to a “principal activity” and thus not excluded from coverage by §4(a)(2), but that are not themselves “principal activities” as that term is defined by §4(a)(1). IBP’s submission is foreclosed by Steiner. As noted above, in Steiner, we made it clear that §4 of the Portal-to-Portal Act does not remove activities which are “ ‘integral and indispensable’ ” to “ ‘principal activities’ ” from FLSA coverage precisely because such activities are themselves “principal activities.” Id., at 253. While Steiner specifically addressed the proper interpretation of the term “principal activity or activities” in §4(a)(2), there is no plausible argument that these terms mean something different in §4(a)(2) than they do in §4(a)(1).[Footnote 6] This is not only because of the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning. E.g., Sullivan v. Stroop, 496 U. S. 478, 484 (1990). It is also because §4(a)(2) refers to “said principal activity or activities.” 61 Stat. 87 (emphasis added). The “said” is an explicit reference to the use of the identical term in §4(a)(1). Indeed, IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently “principal” to be compensable, but not sufficiently principal to commence the workday. Accepting the necessary import of our holding in Steiner, we conclude that the locker rooms where the special safety gear is donned and doffed are the relevant “place of performance” of the principal activity that the employee was employed to perform within the meaning of §4(a)(1). Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced. Purpose IBP emphasizes that our decision in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, may well have been the proximate cause of the enactment of the Portal-to-Portal Act. In that case we held that the FLSA mandated compensation for the time that employees spent walking from time clocks located near the plant entrance to their respective places of work prior to the start of their productive labor. Id., at 690–691. In IBP’s view, Congress’ forceful repudiation of that holding reflects a purpose to exclude what IBP regards as the quite similar walking time spent by respondents before and after their work slaughtering cattle and processing meat. Even if there is ambiguity in the statute, we should construe it to effectuate that important purpose. This argument is also unpersuasive. There is a critical difference between the walking at issue in Anderson and the walking at issue in this case. In Anderson the walking preceded the employees’ principal activity; it occurred before the workday began. The relevant walking in this case occurs after the workday begins and before it ends. Only if we were to endorse IBP’s novel submission that an activity can be sufficiently “principal” to be compensable, but not sufficiently so to start the workday, would this case be comparable to Anderson. Moreover, there is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case. Indeed, for processing division knife users, the largest segment of the work force at IBP’s plant, the walking time in dispute here consumes less time than the donning and doffing activities that precede or follow it. It is more comparable to time spent walking between two different positions on an assembly line than to the prework walking in Anderson. Regulations The regulations adopted by the Secretary of Labor in 1947 support respondents’ view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday. Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line. See 29 CFR §790.7(c) (2005) (explaining that the Portal-to-Portal Act does not affect the compensability of time spent traveling from the place of performance of one principal activity to that of another). See also §785.38 (explaining, in a later regulation interpreting the FLSA, that “[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked …”). IBP argues, however, that two provisions in the regulations point to a different conclusion—the use of the phrase “whistle to whistle” in discussing the limits of the “workday,” §790.6, and a footnote stating that postchanging walking time is not “necessarily” excluded from the scope of §4(a)(1). §790.7(g), n. 49. The “whistle to whistle” reference does reflect the view that in most situations the workday will be defined by the beginning and ending of the primary productive activity. But the relevant text describes the workday as “roughly the period ‘from whistle to whistle.’ ” §790.6(a) (emphasis added). Indeed, the next subsection of this same regulation states: “ ‘Workday’ as used in the Portal Act means, in general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” §790.6(b). IBP’s emphasis on the “whistle to whistle” reference is unavailing. The footnote on which IBP relies states: “Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee’s ‘principal activity.’ This does not necessarily mean, however, that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform, would be excluded from the type of travel to which section 4(a) refers.” §790.7(g), n. 49 (emphasis added; citations omitted). This footnote does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be. That assumption is, of course, inconsistent with IBP’s submission that such walking is always excluded by §4(a), just as it is inconsistent with respondents’ view that such walking is never excluded. Whatever the correct explanation for the Secretary’s ambiguous (and apparently ambivalent) statement may be, it is not sufficient to overcome the clear statements in the text of the regulations that support our holding. And it surely is not sufficient to overcome the statute itself, whose meaning is definitively resolved by Steiner. For the foregoing reasons, we hold that any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under §4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA. III Respondent in No. 04–66, Barber Foods, Inc. (Barber), operates a poultry processing plant in Portland, Maine, that employs about 300 production workers. These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing. They are paid by the hour from the time they punch in to computerized time clocks located at the entrances to the production floor. Petitioners are Barber employees and former employees who brought this action to recover compensation for alleged unrecorded work covered by the FLSA. Specifically, they claimed that Barber’s failure to compensate them for (a) donning and doffing required protective gear and (b) the attendant walking and waiting violated the statute. After extensive discovery, the Magistrate Judge issued a comprehensive opinion analyzing the facts in detail, and recommending the entry of partial summary judgment in favor of Barber. That opinion, which was later adopted by the District Court for Maine, included two critical rulings. First, the Magistrate held that “the donning and doffing of clothing and equipment required by the defendant or by government regulation, as opposed to clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs’ work [and therefore are] not excluded from compensation under the Portal-to-Portal Act as preliminary or postliminary activities.” App. to Pet. for Cert. in 04–66, pp. 36a–40a. Second, the Magistrate rejected petitioners’ claims for “compensation for the time spent before obtaining their clothing and equipment.” Id., at 33a. Such time, in the Magistrate’s view, “could [not] reasonably be construed to be an integral part of employees’ work activities any more than walking to the cage from which hairnets and earplugs are dispensed … .” Ibid. Accordingly, Barber was “entitled to summary judgment on any claims based on time spent walking from the plant entrances to an employee’s workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment.” Id., at 33a–34a. The Magistrate Judge’s opinion did not specifically address the question whether the walking time between the production line and the place of donning and doffing was encompassed by §4 of the Portal-to-Portal Act, and thus excluded from coverage under the FLSA. Whatever the intended scope of the Magistrate’s grant of partial summary judgment, the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear. Before the case was submitted to the jury, the parties stipulated that four categories of workers—rotating, set-up, meatroom, and shipping and receiving associates—were required to don protective gear at the beginning of their shifts and were required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees—maintenance and sanitation associates—were not required to don protective gear before starting their shifts.[Footnote 7] Accordingly, the jury ruled for Barber on all counts. On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noncompensable the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners’ argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by §§4(a)(1) and (2) of the Portal-to-Portal Act. 360 F. 3d, at 281. As we have explained in our discussion of IBP’s submission, see Part II, supra, that categorical conclusion was incorrect. Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a “preliminary or postliminary activity” and thus was excluded from FLSA coverage by the Portal-to-Portal Act. 360 F. 3d, at 282. Our analysis in Part II, supra, demonstrates that the Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is “integral and indispensable” to employees’ work is a “principal activity” under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA. The time spent waiting to don—time that elapses before the principal activity of donning integral and indispensable gear—presents the quite different question whether it should have the effect of advancing the time when the workday begins. Barber argues that such predonning waiting time is explicitly covered by §4(a)(2) of the Portal-to-Portal Act, which, as noted above, excludes “activities which are preliminary to or postliminary to [a] principal activity or activities” from the scope of the FLSA. 29 U. S. C. §254(a)(2). By contrast, petitioners, supported by the United States as amicus curiae, maintain that the predonning waiting time is “integral and indispensable” to the “principal activity” of donning, and is therefore itself a principal activity. However, unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not “integral and indispensable” in the same sense that the donning is. It does, however, always comfortably qualify as a “preliminary” activity. We thus do not agree with petitioners that the predonning waiting time at issue in this case is a “principal activity” under §4(a).[Footnote 8] As Barber points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are “integral and indispensable” to a “principal activity” under Steiner. For example, walking from a time clock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress’ intent to repudiate Anderson’s holding that such walking time was compensable under the FLSA. We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a “principal activity” under §4(a), without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a “principal activity” under §4(a) and would thus be unaffected by the Portal-to-Portal Act. The Government also relies on a regulation promulgated by the Secretary of Labor as supporting petitioners’ view. That regulation, 29 CFR §790.7(h) (2005), states that when an employee “is required by his employer to report at a particular hour at his workbench or other place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee’s principal activities.” That regulation would be applicable if Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed, but there is no such evidence in the record in this case. More pertinent, we believe, is the portion of §790.7 that characterizes the time that employees must spend waiting to check in or waiting to receive their paychecks as generally a “preliminary” activity covered by the Portal-to-Portal Act. See §790.7(g). That regulation is fully consistent with the statutory provisions that allow the compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry. In short, we are not persuaded that such waiting—which in this case is two steps removed from the productive activity on the assembly line—is “integral and indispensable” to a “principal activity” that identifies the time when the continuous workday begins. Accordingly, we hold that §4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. IV For the reasons stated above, we affirm the judgment of the Court of Appeals for the Ninth Circuit in No. 03–1238. We affirm in part and reverse in part the judgment of the Court of Appeals for the First Circuit in No. 04–66, and we remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The most pertinent definition provides: “ ‘Employ’ includes to suffer or permit to work.” 52 Stat. 1060, 29 U. S. C. §203(g). Footnote 2 Part II of the Portal-to-Portal Act, entitled “existing claims,” states in relevant part: “Sec. 2. Relief From Certain Existing Claims Under the Fair Labor Standards Act of 1938 … — “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act … (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 85 (codified at 29 U. S. C. §252(a)). Footnote 3 The regulation provides in full: “Section 4 of the Portal Act does not affect the computation of hours worked within the ‘workday’ proper, roughly described as the period ‘from whistle to whistle,’ and its provisions have nothing to do with the compensability under the Fair Labor Standards Act of any activities engaged in by an employee during that period. Under the provisions of section 4, one of the conditions that must be present before ‘preliminary’ or ‘postliminary’ activities are excluded from hours worked is that they ‘occur either prior to the time on any particular workday at which the employee commences, or subsequent to the time on any particular workday at which he ceases’ the principal activity or activities which he is employed to perform. Accordingly, to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of that section have no application. Periods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any workday must be included in the computation of hours worked to the same extent as would be required if the Portal Act had not been enacted. The principles for determining hours worked within the ‘workday’ proper will continue to be those established under the Fair Labor Standards Act without reference to the Portal Act, which is concerned with this question only as it relates to time spent outside the ‘workday’ in activities of the kind described in section 4.” §790.6(a) (footnotes omitted). Footnote 4 IBP does not contend that this clothes-changing time fully compensated respondents for the preproduction and postproduction time at issue in this case. Footnote 5 The District Court explained: “Walking time is compensable if it occurs after the start of the workday. 29 U. S. C. §254(a). Walking time is excluded under the Portal to Portal Act only if it occurs ‘either prior to the time on any particular work day at which such employee commences or subsequent to the time on any particular work day at which he ceases such principal activity or activities.’ Id. The work day begins with the commencement of an employer’s principal activity or activities and ends with the completion of the employee’s activity… .” App. to Pet. for Cert. in No. 03–1238, pp. 53a–54a. Footnote 6 In fact, as noted above, in Steiner we specifically endorsed the view of the Court of Appeals that the definition of “principal activity or activities” in §4 encompassed activities “ ‘integral and indispensable’ ” to those principal activities. We did not make any distinction between §4(a)(1) and §4(a)(2). 350 U. S., at 253. Footnote 7 The claims brought by these workers are no longer part of this case. Footnote 8 As explained below, our analysis would be different if Barber required its employees to arrive at a particular time in order to begin waiting.
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547.US.28
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Petitioners manufacture and market printing systems that include a patented printhead and ink container and unpatented ink, which they sell to original equipment manufacturers who agree that they will purchase ink exclusively from petitioners and that neither they nor their customers will refill the patented containers with ink of any kind. Respondent developed ink with the same chemical composition as petitioners’ ink. After petitioner Trident’s infringement action was dismissed, respondent filed suit seeking a judgment of noninfringement and invalidity of Trident’s patents on the ground that petitioners are engaged in illegal “tying” and monopolization in violation of §§1 and 2 of the Sherman Act. Granting petitioners summary judgment, the District Court rejected respondent’s argument that petitioners necessarily have market power as a matter of law by virtue of the patent on their printhead system, thereby rendering the tying arrangements per se violations of the antitrust laws. After carefully reviewing this Court’s tying-arrangements decisions, the Federal Circuit reversed as to the §1 claim, concluding that it had to follow this Court’s precedents until overruled by this Court. Held: Because a patent does not necessarily confer market power upon the patentee, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product. Pp. 3–17. (a) Over the years, this Court’s strong disapproval of tying arrangements has substantially diminished, as the Court has moved from relying on assumptions to requiring a showing of market power in the tying product. The assumption in earlier decisions that such “arrangements serve hardly any purpose beyond the suppression of competition,” Standard Oil Co. of Cal. v. United States, 337 U. S. 293, 305–306, was rejected in United States Steel Corp. v. Fortner Enterprises, Inc., 429 U. S. 610, 622 (Fortner II), and again in Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2, both of which involved unpatented tying products. Nothing in Jefferson Parish suggested a rebuttable presumption of market power applicable to tying arrangements involving a patent on the tying good. Pp. 3–8. (b) The presumption that a patent confers market power arose outside the antitrust context as part of the patent misuse doctrine, and migrated to antitrust law in International Salt Co. v. United States, 332 U. S. 392. See also Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488; United States v. Loew’s Inc., 371 U. S. 38. Pp. 8–10. (c) When Congress codified the patent laws for the first time, it initiated the untwining of the patent misuse doctrine and antitrust jurisprudence. At the same time that this Court’s antitrust jurisprudence continued to rely on the assumption that tying arrangements generally serve no legitimate business purpose, Congress began chipping away at that assumption in the patent misuse context from whence it came. Then, four years after Jefferson Parish repeated the presumption that patents confer market power, Congress amended the Patent Code to eliminate it in the patent misuse context. While that amendment does not expressly refer to the antitrust laws, it invites reappraisal of International Salt’s per se rule. After considering the congressional judgment reflected in the amendment, this Court concludes that tying arrangements involving patented products should be evaluated under the standards of cases like Fortner II and Jefferson Parish rather than the per se rule in Morton Salt and Loew’s. Any conclusion that an arrangement is unlawful must be supported by proof of power in the relevant market rather than by a mere presumption thereof. Pp. 11–13. (d) Respondent’s alternatives to retention of the per se rule—that the Court endorse a rebuttable presumption that patentees possess market power when they condition the purchase of the patented product on an agreement to buy unpatented goods exclusively from the patentee, or differentiate between tying arrangements involving requirements ties and other types of tying arrangements—are rejected. Pp. 14–16. (e) Because respondent reasonably relied on this Court’s prior opinions in moving for summary judgment without offering evidence of the relevant market or proving petitioners’ power within that market, respondent should be given a fair opportunity to develop and introduce evidence on that issue, as well as other relevant issues, when the case returns to the District Court. P. 17. 396 F. 3d 1342, vacated and remanded. Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
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In Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2 (1984), we repeated the well-settled proposition that “if the Government has granted the seller a patent or similar monopoly over a product, it is fair to presume that the inability to buy the product elsewhere gives the seller market power.” Id., at 16. This presumption of market power, applicable in the antitrust context when a seller conditions its sale of a patented product (the “tying” product) on the purchase of a second product (the “tied” product), has its foundation in the judicially created patent misuse doctrine. See United States v. Loew’s Inc., 371 U. S. 38, 46 (1962). In 1988, Congress substantially undermined that foundation, amending the Patent Act to eliminate the market power presumption in patent misuse cases. See 102 Stat. 4674, codified at 35 U. S. C. §271(d). The question presented to us today is whether the presumption of market power in a patented product should survive as a matter of antitrust law despite its demise in patent law. We conclude that the mere fact that a tying product is patented does not support such a presumption. I Petitioners, Trident, Inc., and its parent, Illinois Tool Works Inc., manufacture and market printing systems that include three relevant components: (1) a patented piezoelectric impulse ink jet printhead; (2) a patented ink container, consisting of a bottle and valved cap, which attaches to the printhead; and (3) specially designed, but unpatented, ink. Petitioners sell their systems to original equipment manufacturers (OEMs) who are licensed to incorporate the printheads and containers into printers that are in turn sold to companies for use in printing barcodes on cartons and packaging materials. The OEMs agree that they will purchase their ink exclusively from petitioners, and that neither they nor their customers will refill the patented containers with ink of any kind. Respondent, Independent Ink, Inc., has developed an ink with the same chemical composition as the ink sold by petitioners. After an infringement action brought by Trident against Independent was dismissed for lack of personal jurisdiction, Independent filed suit against Trident seeking a judgment of noninfringement and invalidity of Trident’s patents.[Footnote 1] In an amended complaint, it alleged that petitioners are engaged in illegal tying and monopolization in violation of §§1 and 2 of the Sherman Act. 15 U. S. C. §§1, 2. After discovery, the District Court granted petitioners’ motion for summary judgment on the Sherman Act claims. Independent Ink, Inc. v. Trident, Inc., 210 F. Supp. 2d 1155, 1177 (CD Cal. 2002). It rejected respondent’s submission that petitioners “necessarily have market power in the market for the tying product as a matter of law solely by virtue of the patent on their printhead system, thereby rendering [the] tying arrangements per se violations of the antitrust laws.” Id., at 1159. Finding that respondent had submitted no affirmative evidence defining the relevant market or establishing petitioners’ power within it, the court concluded that respondent could not prevail on either antitrust claim. Id., at 1167, 1173, 1177. The parties settled their other claims, and respondent appealed. After a careful review of the “long history of Supreme Court consideration of the legality of tying arrangements,” 396 F. 3d 1342, 1346 (2005), the Court of Appeals for the Federal Circuit reversed the District Court’s decision as to respondent’s §1 claim, id., at 1354. Placing special reliance on our decisions in International Salt Co. v. United States, 332 U. S. 392 (1947), and Loew’s, 371 U. S. 38, as well as our Jefferson Parish dictum, and after taking note of the academic criticism of those cases, it concluded that the “fundamental error” in petitioners’ submission was its disregard of “the duty of a court of appeals to follow the precedents of the Supreme Court until the Court itself chooses to expressly overrule them.” 396 F. 3d, at 1351. We granted certiorari to undertake a fresh examination of the history of both the judicial and legislative appraisals of tying arrangements. 545 U. S. __ (2005). Our review is informed by extensive scholarly comment and a change in position by the administrative agencies charged with enforcement of the antitrust laws. II American courts first encountered tying arrangements in the course of patent infringement litigation. See, e.g., Heaton-Peninsular Button-Fastening Co. v. Eureka Specialty Co., 77 F. 288 (CA6 1896). Such a case came before this Court in Henry v. A. B. Dick Co., 224 U. S. 1 (1912), in which, as in the case we decide today, unpatented ink was the product that was “tied” to the use of a patented product through the use of a licensing agreement. Without commenting on the tying arrangement, the Court held that use of a competitor’s ink in violation of a condition of the agreement—that the rotary mimeograph “ ‘may be used only with the stencil, paper, ink and other supplies made by A. B. Dick Co.’ ”—constituted infringement of the patent on the machine. Id., at 25–26. Chief Justice White dissented, explaining his disagreement with the Court’s approval of a practice that he regarded as an “attempt to increase the scope of the monopoly granted by a patent . . . which tend[s] to increase monopoly and to burden the public in the exercise of their common rights.” Id., at 70. Two years later, Congress endorsed Chief Justice White’s disapproval of tying arrangements, enacting §3 of the Clayton Act. See 38 Stat. 731 (applying to “patented or unpatented” products); see also Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 517–518 (1917) (explaining that, in light of §3 of the Clayton Act, A. B. Dick “must be regarded as overruled”). And in this Court’s subsequent cases reviewing the legality of tying arrangements we, too, embraced Chief Justice White’s disapproval of those arrangements. See, e.g., Standard Oil Co. of Cal. v. United States, 337 U. S. 293, 305–306 (1949); Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661, 664–665 (1944). In the years since A. B. Dick, four different rules of law have supported challenges to tying arrangements. They have been condemned as improper extensions of the patent monopoly under the patent misuse doctrine, as unfair methods of competition under §5 of the Federal Trade Commission Act, 15 U. S. C. §45, as contracts tending to create a monopoly under §3 of the Clayton Act, 15 U. S. C. §13a, and as contracts in restraint of trade under §1 of the Sherman Act.[Footnote 2] In all of those instances, the justification for the challenge rested on either an assumption or a showing that the defendant’s position of power in the market for the tying product was being used to restrain competition in the market for the tied product. As we explained in Jefferson Parish, 466 U. S., at 12, “[o]ur cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms.” Over the years, however, this Court’s strong disapproval of tying arrangements has substantially diminished. Rather than relying on assumptions, in its more recent opinions the Court has required a showing of market power in the tying product. Our early opinions consistently assumed that “[t]ying arrangements serve hardly any purpose beyond the suppression of competition.” Standard Oil Co., 337 U. S., at 305–306. In 1962, in Loew’s, 371 U. S., at 47–48, the Court relied on this assumption despite evidence of significant competition in the market for the tying product. And as recently as 1969, Justice Black, writing for the majority, relied on the assumption as support for the proposition “that, at least when certain prerequisites are met, arrangements of this kind are illegal in and of themselves, and no specific showing of unreasonable competitive effect is required.” Fortner Enterprises, Inc. v. United States Steel Corp., 394 U. S. 495, 498–499 (Fortner I). Explaining the Court’s decision to allow the suit to proceed to trial, he stated that “decisions rejecting the need for proof of truly dominant power over the tying product have all been based on a recognition that because tying arrangements generally serve no legitimate business purpose that cannot be achieved in some less restrictive way, the presence of any appreciable restraint on competition provides a sufficient reason for invalidating the tie.” Id., at 503. Reflecting a changing view of tying arrangements, four Justices dissented in Fortner I, arguing that the challenged “tie”—the extension of a $2 million line of credit on condition that the borrower purchase prefabricated houses from the defendant—might well have served a legitimate purpose. Id., at 510 (opinion of White, J.); id., at 520 (opinion of Fortas, J.). In his opinion, Justice White noted that promotional tie-ins may provide “uniquely advantageous deals” to purchasers. Id., at 519. And Justice Fortas concluded that the arrangement was best characterized as “a sale of a single product with the incidental provision of financing.” Id., at 522. The dissenters’ view that tying arrangements may well be procompetitive ultimately prevailed; indeed, it did so in the very same lawsuit. After the Court remanded the suit in Fortner I, a bench trial resulted in judgment for the plaintiff, and the case eventually made its way back to this Court. Upon return, we unanimously held that the plaintiff’s failure of proof on the issue of market power was fatal to its case—the plaintiff had proved “nothing more than a willingness to provide cheap financing in order to sell expensive houses.” United States Steel Corp. v. Fortner Enterprises, Inc., 429 U. S. 610, 622 (1977) (Fortner II). The assumption that “[t]ying arrangements serve hardly any purpose beyond the suppression of competition,” rejected in Fortner II, has not been endorsed in any opinion since. Instead, it was again rejected just seven years later in Jefferson Parish, where, as in Fortner II, we unanimously reversed a Court of Appeals judgment holding that an alleged tying arrangement constituted a per se violation of §1 of the Sherman Act. 466 U. S., at 5. Like the product at issue in the Fortner cases, the tying product in Jefferson Parish—hospital services—was unpatented, and our holding again rested on the conclusion that the plaintiff had failed to prove sufficient power in the tying product market to restrain competition in the market for the tied product—services of anesthesiologists. 466 U. S., at 28–29. In rejecting the application of a per se rule that all tying arrangements constitute antitrust violations, we explained: “[W]e have condemned tying arrangements when the seller has some special ability—usually called ‘market power’—to force a purchaser to do something that he would not do in a competitive market. . . . . . . . . “Per se condemnation—condemnation without inquiry into actual market conditions—is only appropriate if the existence of forcing is probable. Thus, application of the per se rule focuses on the probability of anticompetitive consequences. . . . “For example, if the Government has granted the seller a patent or similar monopoly over a product, it is fair to presume that the inability to buy the product elsewhere gives the seller market power. United States v. Loew’s Inc., 371 U. S., at 45–47. Any effort to enlarge the scope of the patent monopoly by using the market power it confers to restrain competition in the market for a second product will undermine competition on the merits in that second market. Thus, the sale or lease of a patented item on condition that the buyer make all his purchases of a separate tied product from the patentee is unlawful.” Id., at 13–16 (footnote omitted). Notably, nothing in our opinion suggested a rebuttable presumption of market power applicable to tying arrangements involving a patent on the tying good. See infra, at 14; cf. 396 F. 3d, at 1352. Instead, it described the rule that a contract to sell a patented product on condition that the purchaser buy unpatented goods exclusively from the patentee is a per se violation of §1 of the Sherman Act. Justice O’Connor wrote separately in Jefferson Parish, concurring in the judgment on the ground that the case did not involve a true tying arrangement because, in her view, surgical services and anesthesia were not separate products. 466 U. S., at 43. In her opinion, she questioned not only the propriety of treating any tying arrangement as a per se violation of the Sherman Act, id., at 35, but also the validity of the presumption that a patent always gives the patentee significant market power, observing that the presumption was actually a product of our patent misuse cases rather than our antitrust jurisprudence, id., at 37–38, n. 7. It is that presumption, a vestige of the Court’s historical distrust of tying arrangements, that we address squarely today. III Justice O’Connor was, of course, correct in her assertion that the presumption that a patent confers market power arose outside the antitrust context as part of the patent misuse doctrine. That doctrine had its origins in Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 (1917), which found no support in the patent laws for the proposition that a patentee may “prescribe by notice attached to a patented machine the conditions of its use and the supplies which must be used in the operation of it, under pain of infringement of the patent,” id., at 509. Although Motion Picture Patents Co. simply narrowed the scope of possible patent infringement claims, it formed the basis for the Court’s subsequent decisions creating a patent misuse defense to infringement claims when a patentee uses its patent “as the effective means of restraining competition with its sale of an unpatented article.” Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 490 (1942); see also, e.g., Carbice Corp. of America v. American Patents Development Corp., 283 U. S. 27, 31 (1931). Without any analysis of actual market conditions, these patent misuse decisions assumed that, by tying the purchase of unpatented goods to the sale of the patented good, the patentee was “restraining competition,” Morton Salt, 314 U. S., at 490, or “secur[ing] a limited monopoly of an unpatented material,” Mercoid, 320 U. S., at 664; see also Carbice, 283 U. S., at 31–32. In other words, these decisions presumed “[t]he requisite economic power” over the tying product such that the patentee could “extend [its] economic control to unpatented products.” Loew’s, 371 U. S., at 45–46. The presumption that a patent confers market power migrated from patent law to antitrust law in International Salt Co. v. United States, 332 U. S. 392 (1947). In that case, we affirmed a District Court decision holding that leases of patented machines requiring the lessees to use the defendant’s unpatented salt products violated §1 of the Sherman Act and §3 of the Clayton Act as a matter of law. Id., at 396. Although the Court’s opinion does not discuss market power or the patent misuse doctrine, it assumes that “[t]he volume of business affected by these contracts cannot be said to be insignificant or insubstantial and the tendency of the arrangement to accomplishment of monopoly seems obvious.” Ibid. The assumption that tying contracts “ten[d] … to accomplishment of monopoly” can be traced to the Government’s brief in International Salt, which relied heavily on our earlier patent misuse decision in Morton Salt. The Government described Morton Salt as “present[ing] a factual situation almost identical with the instant case,” and it asserted that “although the Court in that case did not find it necessary to decide whether the antitrust laws were violated, its language, its reasoning, and its citations indicate that the policy underlying the decision was the same as that of the Sherman Act.” Brief for United States in International Salt Co. v. United States, O. T. 1947, No. 46, p. 19 (United States Brief). Building on its assertion that International Salt was logically indistinguishable from Morton Salt, the Government argued that this Court should place tying arrangements involving patented products in the category of per se violations of the Sherman Act. United States Brief 26–33. Our opinion in International Salt clearly shows that we accepted the Government’s invitation to import the presumption of market power in a patented product into our antitrust jurisprudence. While we cited Morton Salt only for the narrower proposition that the defendant’s patents did not confer any right to restrain competition in unpatented salt or afford the defendant any immunity from the antitrust laws, International Salt, 332 U. S., at 395–396, given the fact that the defendant was selling its unpatented salt at competitive prices, id., at 396–397, the rule adopted in International Salt necessarily accepted the Government’s submission that the earlier patent misuse cases supported the broader proposition “that this type of restraint is unlawful on its face under the Sherman Act,” United States Brief 12. Indeed, later in the same Term we cited International Salt for the proposition that the license of “a patented device on condition that unpatented materials be employed in conjunction with the patented device” is an example of a restraint that is “illegal per se.” United States v. Columbia Steel Co., 334 U. S. 495, 522–523, and n. 22 (1948). And in subsequent cases we have repeatedly grounded the presumption of market power over a patented device in International Salt. See, e.g., Loew’s, 371 U. S., at 45–46; Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 608 (1953); Standard Oil Co., 337 U. S., at 304. IV Although the patent misuse doctrine and our antitrust jurisprudence became intertwined in International Salt, subsequent events initiated their untwining. This process has ultimately led to today’s reexamination of the presumption of per se illegality of a tying arrangement involving a patented product, the first case since 1947 in which we have granted review to consider the presumption’s continuing validity. Three years before we decided International Salt, this Court had expanded the scope of the patent misuse doctrine to include not only supplies or materials used by a patented device, but also tying arrangements involving a combination patent and “unpatented material or [a] device [that] is itself an integral part of the structure embodying the patent.” Mercoid, 320 U. S., at 665; see also Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 188–198 (1980) (describing in detail Mercoid and the cases leading up to it). In reaching this conclusion, the Court explained that it could see “no difference in principle” between cases involving elements essential to the inventive character of the patent and elements peripheral to it; both, in the Court’s view, were attempts to “expan[d] the patent beyond the legitimate scope of its monopoly.” Mercoid, 320 U. S., at 665. Shortly thereafter, Congress codified the patent laws for the first time. See 66 Stat. 792, codified as 35 U. S. C. §1 et seq. (2000 ed. and Supp. III). At least partly in response to our Mercoid decision, Congress included a provision in its codification that excluded some conduct, such as a tying arrangement involving the sale of a patented product tied to an “essential” or “nonstaple” product that has no use except as part of the patented product or method, from the scope of the patent misuse doctrine. §271(d); see also Dawson, 448 U. S., at 214. Thus, at the same time that our antitrust jurisprudence continued to rely on the assumption that “tying arrangements generally serve no legitimate business purpose,” Fortner I, 394 U. S., at 503, Congress began chipping away at the assumption in the patent misuse context from whence it came. It is Congress’ most recent narrowing of the patent misuse defense, however, that is directly relevant to this case. Four years after our decision in Jefferson Parish repeated the patent–equals–market–power presumption, 466 U. S., at 16, Congress amended the Patent Code to eliminate that presumption in the patent misuse context, 102 Stat. 4674. The relevant provision reads: “(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: … (5) conditioned the license of any rights to the patent or the sale of the patented product on the acquisition of a license to rights in another patent or purchase of a separate product, unless, in view of the circumstances, the patent owner has market power in the relevant market for the patent or patented product on which the license or sale is conditioned.” 35 U. S. C. §271(d)(5) (emphasis added). The italicized clause makes it clear that Congress did not intend the mere existence of a patent to constitute the requisite “market power.” Indeed, fairly read, it provides that without proof that Trident had market power in the relevant market, its conduct at issue in this case was neither “misuse” nor an “illegal extension of the patent right.” While the 1988 amendment does not expressly refer to the antitrust laws, it certainly invites a reappraisal of the per se rule announced in International Salt.[Footnote 3] A rule denying a patentee the right to enjoin an infringer is significantly less severe than a rule that makes the conduct at issue a federal crime punishable by up to 10 years in prison. See 15 U. S. C. §1. It would be absurd to assume that Congress intended to provide that the use of a patent that merited punishment as a felony would not constitute “misuse.” Moreover, given the fact that the patent misuse doctrine provided the basis for the market power presumption, it would be anomalous to preserve the presumption in antitrust after Congress has eliminated its foundation. Cf. 10 P. Areeda, H. Hovenkamp, & E. Elhauge, Antitrust Law ¶1737c (2d ed. 2004) (hereinafter Areeda). After considering the congressional judgment reflected in the 1988 amendment, we conclude that tying arrangements involving patented products should be evaluated under the standards applied in cases like Fortner II and Jefferson Parish rather than under the per se rule applied in Morton Salt and Loew’s. While some such arrangements are still unlawful, such as those that are the product of a true monopoly or a marketwide conspiracy, see, e.g., United States v. Paramount Pictures, Inc., 334 U. S. 131, 145–146 (1948), that conclusion must be supported by proof of power in the relevant market rather than by a mere presumption thereof.[Footnote 4] V Rather than arguing that we should retain the rule of per se illegality, respondent contends that we should endorse a rebuttable presumption that patentees possess market power when they condition the purchase of the patented product on an agreement to buy unpatented goods exclusively from the patentee. Cf. supra, at 7–8. Respondent recognizes that a large number of valid patents have little, if any, commercial significance, but submits that those that are used to impose tying arrangements on unwilling purchasers likely do exert significant market power. Hence, in respondent’s view, the presumption would have no impact on patents of only slight value and would be justified, subject to being rebutted by evidence offered by the patentee, in cases in which the patent has sufficient value to enable the patentee to insist on acceptance of the tie. Respondent also offers a narrower alternative, suggesting that we differentiate between tying arrangements involving the simultaneous purchase of two products that are arguably two components of a single product—such as the provision of surgical services and anesthesiology in the same operation, Jefferson Parish, 466 U. S., at 43 (O’Connor, J., concurring in judgment), or the licensing of one copyrighted film on condition that the licensee take a package of several films in the same transaction, Loew’s, 371 U. S. 38—and a tying arrangement involving the purchase of unpatented goods over a period of time, a so-called “requirements tie.” See also Brief for Barry Nalebuff et al. as Amici Curiae. According to respondent, we should recognize a presumption of market power when faced with the latter type of arrangements because they provide a means for charging large volume purchasers a higher royalty for use of the patent than small purchasers must pay, a form of discrimination that “is strong evidence of market power.” Brief for Respondent 27; see generally Jefferson Parish, 466 U. S., at 15, n. 23 (discussing price discrimination of this sort and citing sources). The opinion that imported the “patent equals market power” presumption into our antitrust jurisprudence, however, provides no support for respondent’s proposed alternative. In International Salt, it was the existence of the patent on the tying product, rather than the use of a requirements tie, that led the Court to presume market power. 332 U. S., at 395 (“The appellant’s patents confer a limited monopoly of the invention they reward”). Moreover, the requirements tie in that case did not involve any price discrimination between large volume and small volume purchasers or evidence of noncompetitive pricing. Instead, the leases at issue provided that if any competitor offered salt, the tied product, at a lower price, “the lessee should be free to buy in the open market, unless appellant would furnish the salt at an equal price.” Id., at 396. As we have already noted, the vast majority of academic literature recognizes that a patent does not necessarily confer market power. See n. 4, supra. Similarly, while price discrimination may provide evidence of market power, particularly if buttressed by evidence that the patentee has charged an above-market price for the tied package, see, e.g., 10 Areeda ¶1769c, it is generally recognized that it also occurs in fully competitive markets, see, e.g., Baumol & Swanson, The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power, 70 Antitrust L. J. 661, 666 (2003); 9 Areeda ¶1711; Landes & Posner 374–375. We are not persuaded that the combination of these two factors should give rise to a presumption of market power when neither is sufficient to do so standing alone. Rather, the lesson to be learned from International Salt and the academic commentary is the same: Many tying arrangements, even those involving patents and requirements ties, are fully consistent with a free, competitive market. For this reason, we reject both respondent’s proposed rebuttable presumption and their narrower alternative. It is no doubt the virtual consensus among economists that has persuaded the enforcement agencies to reject the position that the Government took when it supported the per se rule that the Court adopted in the 1940’s. See supra, at 8. In antitrust guidelines issued jointly by the Department of Justice and the Federal Trade Commission in 1995, the enforcement agencies stated that in the exercise of their prosecutorial discretion they “will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner.” U. S. Dept. of Justice and FTC, Antitrust Guidelines for the Licensing of Intellectual Property §2.2 (Apr. 6, 1995), available at http://www.usdoj.gov/atr/public/guidelines/0558.pdf (as visited Feb. 24, 2006, and available in Clerk of Court’s case file). While that choice is not binding on the Court, it would be unusual for the Judiciary to replace the normal rule of lenity that is applied in criminal cases with a rule of severity for a special category of antitrust cases. Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion, and therefore hold that, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product. VI In this case, respondent reasonably relied on our prior opinions in moving for summary judgment without offering evidence defining the relevant market or proving that petitioners possess power within it. When the case returns to the District Court, respondent should therefore be given a fair opportunity to develop and introduce evidence on that issue, as well as any other issues that are relevant to its remaining §1 claims. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 Illinois Tool did not acquire Trident until February 19, 1999, approximately six months after this action commenced. Footnote 2 See, e.g., Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2, 9 (1984) (Sherman Act); Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 609 (1953) (Federal Trade Commission Act); International Salt Co. v. United States, 332 U. S. 392, 395–396 (1947) (Clayton Act and Sherman Act); Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 494 (1942) (patent misuse); Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 516 (1917) (same). Footnote 3 While our opinions have made clear that such an invitation is not necessary with respect to cases arising under the Sherman Act, see State Oil Co. v. Khan, 522 U. S. 3, 20 (1997), it is certainly sufficient to warrant reevaluation of our precedent, id., at 21 (“[T]his Court has reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question”). Footnote 4 Our imposition of this requirement accords with the vast majority of academic literature on the subject. See, e.g., 10 Areeda ¶1737a (“[T]here is no economic basis for inferring any amount of market power from the mere fact that the defendant holds a valid patent”); Burchfiel, Patent Misuse and Antitrust Reform: “Blessed be the Tie?” 4 Harv. J. L. & Tech. 1, 57, and n. 340 (noting that the market power presumption has been extensively criticized and citing sources); 1 H. Hovenkamp, M. Janis, & M. Lemley, IP and Antitrust §4.2a (2005 Supp.) (“[C]overage of one’s prodcut with an intellectual property right does not confer a monopoly”); W. Landes & R. Posner, The Economic Structure of Intellectual Property Law 374 (2003) (hereinafter Landes & Posner).
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547.US.220
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Petitioner Jones continued to pay the mortgage on his Arkansas home after separating from his wife and moving elsewhere in the same city. Once the mortgage was paid off, the property taxes—which had been paid by the mortgage company—went unpaid, and the property was certified as delinquent. Respondent Commissioner of State Lands mailed Jones a certified letter at the property’s address, stating that unless he redeemed the property, it would be subject to public sale in two years. Nobody was home to sign for the letter and nobody retrieved it from the post office within 15 days, so it was returned to the Commissioner, marked “unclaimed.” Two years later, the Commissioner published a notice of public sale in a local newspaper. No bids were submitted, so the State negotiated a private sale to respondent Flowers. Before selling the house, the Commissioner mailed another certified letter to Jones, which was also returned unclaimed. Flowers purchased the house and had an unlawful detainer notice delivered to the property. It was served on Jones’ daughter, who notified him of the sale. He filed a state-court suit against respondents, alleging that the Commissioner’s failure to provide adequate notice resulted in the taking of his property without due process. Granting respondents summary judgment, the trial court concluded that Arkansas’ tax sale statute, which sets out the notice procedure used here, complied with due process. The State Supreme Court affirmed. Held: 1. When mailed notice of a tax sale is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. Pp. 4–12. (a) This Court has deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent, see, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314, but has never addressed whether due process requires further efforts when the government becomes aware prior to the taking that its notice attempt has failed. Most Courts of Appeals and State Supreme Courts addressing this question have decided that the government must do more in such a case, and many state statutes require more than mailed notice in the first instance. Pp. 4–6. (b) The means a State employs to provide notice “must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Mullane, 399 U. S., at 315. The adequacy of a particular form of notice is assessed by balancing the State’s interest against “the individual interest sought to be protected by the Fourteenth Amendment.” Id., at 314. Here, the evaluation concerns the adequacy of notice prior to the State’s extinguishing a property owner’s interest in a home. It is unlikely that a person who actually desired to inform an owner about an impending tax sale of a house would do nothing when a certified letter addressed to the owner is returned unclaimed. The sender would ordinarily attempt to resend the letter, if that is practical, especially given that it concerns the important and irreversible prospect of losing a house. The State may have made a reasonable calculation of how to reach Jones, but it had good reason to suspect when the notice was returned that Jones was no better off than if no notice had been sent. The government must consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case. See Robinson v. Hanrahan, 409 U. S. 38, 40 (per curiam), and Covey v. Town of Somers, 351 U. S. 141, 146–147. It does not matter that the State in each of those cases was aware of the information before it calculated the best way to send notice. Knowledge that notice was ineffective was one of the “practicalities and peculiarities of the case” taken into account, Mullane, supra, at 314–315, and it should similarly be taken into account in assessing the adequacy of notice here. The Commissioner and Solicitor General correctly note the constitutionality of that a particular notice procedure is assessed ex ante, not post hoc. But if a feature of the State’s procedure is that it promptly provides additional information to the government about the effectiveness of attempted notice, the ex ante principle is not contravened by considering what the government does with that information. None of the Commissioner’s additional contentions—that notice was sent to an address that Jones provided and had a legal obligation to keep updated, that a property owner who fails to receive a property tax bill and pay taxes is on inquiry notice that his property is subject to governmental taking, and that Jones was obliged to ensure that those in whose hands he left his property would alert him if it was in jeopardy—relieves the State of its constitutional obligation to provide adequate notice. Pp. 7–12. 2. Because additional reasonable steps were available to the State, given the circumstances here, the Commissioner’s effort to provide notice to Jones was insufficient to satisfy due process. What is reasonable in response to new information depends on what that information reveals. The certified letter’s return “unclaimed” meant either that Jones was not home when the postman called and did not retrieve the letter or that he no longer resided there. One reasonable step addressed to the former possibility would be for the State to resend the notice by regular mail, which requires no signature. Certified mail makes actual notice more likely only if someone is there to sign for the letter or tell the mail carrier that the address is incorrect. Regular mail can be left until the person returns home, and might increase the chances of actual notice. Other reasonable follow-up measures would have been to post notice on the front door or address otherwise undeliverable mail to “occupant.” Either approach would increase the likelihood that any occupants would alert the owner, if only because an ownership change could affect their own occupancy. Contrary to Jones’ claim, the Commissioner was not required to search the local phone book and other government records. Such an open-ended search imposes burdens on the State significantly greater than the several relatively easy options outlined here. The Commissioner’s complaint about the burden of even these additional steps is belied by Arkansas’ requirement that notice to homestead owners be accomplished by personal service if certified mail is returned and by the fact that the State transfers the cost of notice to the taxpayer or tax sale purchaser. The Solicitor General’s additional arguments—that posted notice could be removed by children or vandals, and that the follow-up requirement will encourage States to favor modes of delivery that will not generate additional information—are rejected. This Court will not prescribe the form of service that Arkansas should adopt. Arkansas can determine how best to proceed, and the States have taken a variety of approaches. Pp. 12–17. 359 Ark. 443, ___ S. W. 3d ___, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia and Kennedy, JJ., joined. Alito, J., took no part in the consideration or decision of the case.
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Before a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner “notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). We granted certiorari to determine whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner’s property. I In 1967, petitioner Gary Jones purchased a house at 717 North Bryan Street in Little Rock, Arkansas. He lived in the house with his wife until they separated in 1993. Jones then moved into an apartment in Little Rock, and his wife continued to live in the North Bryan Street house. Jones paid his mortgage each month for 30 years, and the mortgage company paid Jones’ property taxes. After Jones paid off his mortgage in 1997, the property taxes went unpaid, and the property was certified as delinquent. In April 2000, respondent Mark Wilcox, the Commissioner of State Lands (Commissioner), attempted to notify Jones of his tax delinquency, and his right to redeem the property, by mailing a certified letter to Jones at the North Bryan Street address. See Ark. Code Ann. §26–37–301 (1997). The packet of information stated that unless Jones redeemed the property, it would be subject to public sale two years later on April 17, 2002. See ibid. Nobody was home to sign for the letter, and nobody appeared at the post office to retrieve the letter within the next 15 days. The post office returned the unopened packet to the Commissioner marked “ ‘unclaimed.’ ” Pet. for Cert. 3. Two years later, and just a few weeks before the public sale, the Commissioner published a notice of public sale in the Arkansas Democrat Gazette. No bids were submitted, which permitted the State to negotiate a private sale of the property. See §26–37–202(b). Several months later, respondent Linda Flowers submitted a purchase offer. The Commissioner mailed another certified letter to Jones at the North Bryan Street address, attempting to notify him that his house would be sold to Flowers if he did not pay his taxes. Like the first letter, the second was also returned to the Commissioner marked “unclaimed.” Ibid. Flowers purchased the house, which the parties stipulated in the trial court had a fair market value of $80,000, for $21,042.15. Record 224. Immediately after the 30-day period for postsale redemption passed, see §26–37–202(e), Flowers had an unlawful detainer notice delivered to the property. The notice was served on Jones’ daughter, who contacted Jones and notified him of the tax sale. Id., at 11 (Exh. B). Jones filed a lawsuit in Arkansas state court against the Commissioner and Flowers, alleging that the Commissioner’s failure to provide notice of the tax sale and of Jones’ right to redeem resulted in the taking of his property without due process. The Commissioner and Flowers moved for summary judgment on the ground that the two unclaimed letters sent by the Commissioner were a constitutionally adequate attempt at notice, and Jones filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the Commissioner and Flowers. App. to Pet. for Cert. 12a–13a. It concluded that the Arkansas tax sale statute, which set forth the notice procedure followed by the Commissioner, complied with constitutional due process requirements. Jones appealed, and the Arkansas Supreme Court affirmed the trial court’s judgment. 359 Ark. 443, ___ S. W. 3d ___ (2004). The court noted our precedent stating that due process does not require actual notice, see Dusenbery v. United States, 534 U. S. 161, 170 (2002), and it held that attempting to provide notice by certified mail satisfied due process in the circumstances presented, 359 Ark., at ___, ___ S. W. 3d, at ___. We granted certiorari, 545 U. S. ___ (2005), to resolve a conflict among the Circuits and State Supreme Courts concerning whether the Due Process Clause requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered. Compare, e.g., Akey v. Clinton County, 375 F. 3d 231, 236 (CA2 2004) (“In light of the notice’s return, the County was required to use ‘reasonably diligent efforts’ to ascertain Akey’s correct address”), and Kennedy v. Mossafa, 100 N. Y. 2d 1, 9, 789 N. E. 2d 607, 611 (2003) (“[W]e reject the view that the enforcing officer’s obligation is always satisfied by sending the notice to the address listed in the tax roll, even where the notice is returned as undeliverable”), with Smith v. Cliffs on the Bay Condominium Assn., 463 Mich. 420, 429, 617 N. W. 2d 536, 541 (2000) (per curiam) (“The fact that one of the mailings was returned by the post office as undeliverable does not impose on the state the obligation to undertake an investigation to see if a new address … could be located”). We hold that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. Under the circumstances presented here, additional reasonable steps were available to the State. We therefore reverse the judgment of the Arkansas Supreme Court. II A Due process does not require that a property owner receive actual notice before the government may take his property. Dusenbery, supra, at 170. Rather, we have stated that due process requires the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U. S., at 314. The Commissioner argues that once the State provided notice reasonably calculated to apprise Jones of the impending tax sale by mailing him a certified letter, due process was satisfied. The Arkansas statutory scheme is reasonably calculated to provide notice, the Commissioner continues, because it provides for notice by certified mail to an address that the property owner is responsible for keeping up to date. See Ark. Code Ann. §26–35–705 (1997). The Commissioner notes this Court’s ample precedent condoning notice by mail, see, e.g., Dusenbery, supra, at 169; Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 490 (1988); Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 798 (1983); Mullane, supra, at 318–319, and adds that the Arkansas scheme exceeds constitutional requirements by requiring the Commissioner to use certified mail. Brief for Respondent Commissioner 14–15. It is true that this Court has deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent. See, e.g., Dusenbery, supra, at 168–169; Mullane, 339 U. S., at 314. In each of these cases, the government attempted to provide notice and heard nothing back indicating that anything had gone awry, and we stated that “[t]he reasonableness and hence the constitutional validity of [the] chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected.” Id., at 315; see also Dusenbery, supra, at 170. But we have never addressed whether due process entails further responsibility when the government becomes aware prior to the taking that its attempt at notice has failed. That is a new wrinkle, and we have explained that the “notice required will vary with circumstances and conditions.” Walker v. City of Hutchinson, 352 U. S. 112, 115 (1956). The question presented is whether such knowledge on the government’s part is a “circumstance and condition” that varies the “notice required.” The Courts of Appeals and State Supreme Courts have addressed this question on frequent occasions, and most have decided that when the government learns its attempt at notice has failed, due process requires the government to do something more before real property may be sold in a tax sale.[Footnote 1] See, e.g., Plemons v. Gale, 396 F. 3d 569, 576 (CA4 2005); Akey, 375 F. 3d, at 236; Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 468, 589 S. E. 2d 81, 85 (2003); Kennedy, 100 N. Y. 2d, at 9, 789 N. E. 2d, at 611; Malone v. Robinson, 614 A. 2d 33, 38 (D. C. App. 1992); St. George Antiochian Orthodox Christian Church v. Aggarwal, 326 Md. 90, 103, 603 A. 2d 484, 490 (1992); Wells Fargo Credit Corp. v. Ziegler, 780 P. 2d 703, 705 (Okla. 1989); Rosenberg v. Smidt, 727 P. 2d 778, 780–783 (Alaska 1986); Giacobbi v. Hall, 109 Idaho 293, 297, 707 P. 2d 404, 408 (1985); Tracy v. County of Chester, Tax Claim Bureau, 507 Pa. 288, 296, 489 A. 2d 1334, 1338–1339 (1985). But see Smith, 463 Mich., at 429, 617 N. W. 2d, at 541; Dahn v. Trownsell, 1998 SD 36, ¶23, 576 N. W. 2d 535, 541–542; Elizondo v. Read, 588 N. E. 2d 501, 504 (Ind. 1992); Atlantic City v. Block C–11, Lot 11, 74 N. J. 34, 39–40, 376 A. 2d 926, 928 (1977). Many States already require in their statutes that the government do more than simply mail notice to delinquent owners, either at the outset or as a followup measure if initial mailed notice is ineffective.[Footnote 2] In Mullane, we stated that “when notice is a person’s due … [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it,” 339 U. S., at 315, and that assessing the adequacy of a particular form of notice requires balancing the “interest of the State” against “the individual interest sought to be protected by the Fourteenth Amendment,” id., at 314. Our leading cases on notice have evaluated the adequacy of notice given to beneficiaries of a common trust fund, Mullane, supra; a mortgagee, Mennonite, 462 U. S. 791; owners of seized cash and automobiles, Dusenbery, 534 U. S. 161; Robinson v. Hanrahan, 409 U. S. 38 (1972) (per curiam); creditors of an estate, Tulsa Professional, 485 U. S. 478; and tenants living in public housing, Greene v. Lindsey, 456 U. S. 444 (1982). In this case, we evaluate the adequacy of notice prior to the State extinguishing a property owner’s interest in a home. We do not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed. If the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner’s office to prepare a new stack of letters and send them again. No one “desirous of actually informing” the owners would simply shrug his shoulders as the letters disappeared and say “I tried.” Failure to follow up would be unreasonable, despite the fact that the letters were reasonably calculated to reach their intended recipients when delivered to the postman. By the same token, when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. See Small v. United States, 136 F. 3d 1334, 1337 (CADC 1998). This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house. Although the State may have made a reasonable calculation of how to reach Jones, it had good reason to suspect when the notice was returned that Jones was “no better off than if the notice had never been sent.” Malone, supra, at 37. Deciding to take no further action is not what someone “desirous of actually informing” Jones would do; such a person would take further reasonable steps if any were available. In prior cases, we have required the government to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case. In Robinson v. Hanrahan, we held that notice of forfeiture proceedings sent to a vehicle owner’s home address was inadequate when the State knew that the property owner was in prison. 409 U. S., at 40. In Covey v. Town of Somers, 351 U. S. 141 (1956), we held that notice of foreclosure by mailing, posting, and publication was inadequate when town officials knew that the property owner was incompetent and without a guardian’s protection. Id., at 146–147. The Commissioner points out that in these cases, the State was aware of such information before it calculated how best to provide notice. But it is difficult to explain why due process would have settled for something less if the government had learned after notice was sent, but before the taking occurred, that the property owner was in prison or was incompetent. Under Robinson and Covey, the government’s knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation on the government’s part to take additional steps to effect notice. That knowledge was one of the “practicalities and peculiarities of the case,” Mullane, supra, at 314–315, that the Court took into account in determining whether constitutional requirements were met. It should similarly be taken into account in assessing the adequacy of notice in this case. The dissent dismisses the State’s knowledge that its notice was ineffective as “learned long after the fact,” post, at 7, n. 5 (opinion of Thomas, J.), but the notice letter was promptly returned to the State two to three weeks after it was sent, and the Arkansas statutory regime precludes the State from taking the property for two years while the property owner may exercise his right to redeem, see Ark. Code Ann. §26–37–301 (Supp. 2005). It is certainly true, as the Commissioner and Solicitor General contend, that the failure of notice in a specific case does not establish the inadequacy of the attempted notice; in that sense, the constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc. But if a feature of the State’s chosen procedure is that it promptly provides additional information to the government about the effectiveness of notice, it does not contravene the ex ante principle to consider what the government does with that information in assessing the adequacy of the chosen procedure. After all, the State knew ex ante that it would promptly learn whether its effort to effect notice through certified mail had succeeded. It would not be inconsistent with the approach the Court has taken in notice cases to ask, with respect to a procedure under which telephone calls were placed to owners, what the State did when no one answered. Asking what the State does when a notice letter is returned unclaimed is not substantively different. The Commissioner has three further arguments for why reasonable followup measures were not required in this case. First, notice was sent to an address that Jones provided and had a legal obligation to keep updated. See Ark. Code Ann. §26–35–705 (1997). Second, “after failing to receive a property tax bill and pay property taxes, a property holder is on inquiry-notice that his property is subject to governmental taking.” Brief for Respondent Commissioner 18–19. Third, Jones was obliged to ensure that those in whose hands he left his property would alert him if it was in jeopardy. None of these contentions relieves the State of its constitutional obligation to provide adequate notice. The Commissioner does not argue that Jones’ failure to comply with a statutory obligation to keep his address updated forfeits his right to constitutionally sufficient notice, and we agree. Id., at 19; see also Brief for United States as Amicus Curiae 16, n. 5 (quoting Mennonite, 462 U. S., at 799 (“ ‘[A] party’s ability to take steps to safeguard its own interests does not relieve the State of its constitutional obligation’ ”)). In Robinson, we noted that Illinois law required each vehicle owner to register his address with the secretary of state, and that the State’s vehicle forfeiture scheme provided for notice by mail to the address listed in the secretary’s records. See 409 U. S., at 38, n. 1 (citing Ill. Rev. Stat., ch. 9512, §3–405 (1971), and ch. 38, §36–1 (1969)). But we found that the State had not provided constitutionally sufficient notice, despite having followed its reasonably calculated scheme, because it knew that Robinson could not be reached at his address of record. 409 U. S., at 31–32. Although Ark. Code Ann. §26–35–705 provides strong support for the Commissioner’s argument that mailing a certified letter to Jones at 717 North Bryan Street was reasonably calculated to reach him, it does not alter the reasonableness of the Commissioner’s position that he must do nothing more when the notice is promptly returned “unclaimed.” As for the Commissioner’s inquiry notice argument, the common knowledge that property may become subject to government taking when taxes are not paid does not excuse the government from complying with its constitutional obligation of notice before taking private property. We have previously stated the opposite: An interested party’s “knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.” Mennonite, supra, at 800. It is at least as widely known that arrestees have the right to remain silent, and that anything they say may be used against them, see Dickerson v. United States, 530 U. S. 428, 443 (2000) (“Miranda [v. Arizona, 384 U. S. 436 (1966),] has become embedded in routine police practice to the point where the warnings have become part of our national culture”), but that knowledge does not excuse a police failure to provide Miranda warnings. Arkansas affords even a delinquent taxpayer the right to settle accounts with the State and redeem his property, so Jones’ failure to pay his taxes in a timely manner cannot by itself excuse inadequate notice. Finally, the Commissioner reminds us of a statement from Mullane that the State can assume an owner leaves his property in the hands of one who will inform him if his interest is in jeopardy. 339 U. S., at 316. But in this passage, Justice Jackson writes of “libel of a ship, attachment of a chattel[,] or entry upon real estate in the name of law”—such “seiz[ures]” of property, he concluded, “may reasonably be expected to come promptly to the owner’s attention.” Ibid. An occupant, however, is not charged with acting as the owner’s agent in all respects, and it is quite a leap from Justice Jackson’s examples to conclude that it is an obligation of tenancy to follow up with certified mail of unknown content addressed to the owner. In fact, the State makes it impossible for the occupant to learn why the Commissioner is writing the owner, because an occupant cannot call for a certified letter without first obtaining the owner’s signature. For all the occupant knows, the Commissioner of State Lands might write to certain residents about a variety of matters he finds important, such as state parks or highway construction; it would by no means be obvious to an occupant observing a certified mail slip from the Commissioner that the owner is in danger of losing his property. In any event, there is no record evidence that notices of attempted delivery were left at 717 North Bryan Street. Mr. Jones should have been more diligent with respect to his property, no question. People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. U. S. Const., Amdt. 14; Mennonite, supra, at 799. B In response to the returned form suggesting that Jones had not received notice that he was about to lose his property, the State did—nothing. For the reasons stated, we conclude the State should have taken additional reasonable steps to notify Jones, if practicable to do so. The question remains whether there were any such available steps. While “[i]t is not our responsibility to prescribe the form of service that the [government] should adopt,” Greene, 456 U. S., at 455, n. 9, if there were no reasonable additional steps the government could have taken upon return of the unclaimed notice letter, it cannot be faulted for doing nothing. We think there were several reasonable steps the State could have taken. What steps are reasonable in response to new information depends upon what the new information reveals. The return of the certified letter marked “unclaimed” meant either that Jones still lived at 717 North Bryan Street, but was not home when the postman called and did not retrieve the letter at the post office, or that Jones no longer resided at that address. One reasonable step primarily addressed to the former possibility would be for the State to resend the notice by regular mail, so that a signature was not required. The Commissioner says that use of certified mail makes actual notice more likely, because requiring the recipient’s signature protects against misdelivery. But that is only true, of course, when someone is home to sign for the letter, or to inform the mail carrier that he has arrived at the wrong address. Otherwise, “[c]ertified mail is dispatched and handled in transit as ordinary mail,” United States Postal Service, Domestic Mail Manual §503.3.2.1 (Mar. 16, 2006), and the use of certified mail might make actual notice less likely in some cases—the letter cannot be left like regular mail to be examined at the end of the day, and it can only be retrieved from the post office for a specified period of time. Following up with regular mail might also increase the chances of actual notice to Jones if—as it turned out—he had moved. Even occupants who ignored certified mail notice slips addressed to the owner (if any had been left) might scrawl the owner’s new address on the notice packet and leave it for the postman to retrieve, or notify Jones directly. Other reasonable followup measures, directed at the possibility that Jones had moved as well as that he had simply not retrieved the certified letter, would have been to post notice on the front door, or to address otherwise undeliverable mail to “occupant.” Most States that explicitly outline additional procedures in their tax sale statutes require just such steps. See n. 2, supra. Either approach would increase the likelihood that the owner would be notified that he was about to lose his property, given the failure of a letter deliverable only to the owner in person. That is clear in the case of an owner who still resided at the premises. It is also true in the case of an owner who has moved: Occupants who might disregard a certified mail slip not addressed to them are less likely to ignore posted notice, and a letter addressed to them (even as “occupant”) might be opened and read. In either case, there is a significant chance the occupants will alert the owner, if only because a change in ownership could well affect their own occupancy. In fact, Jones first learned of the State’s effort to sell his house when he was alerted by one of the occupants—his daughter—after she was served with an unlawful detainer notice. Jones believes that the Commissioner should have searched for his new address in the Little Rock phonebook and other government records such as income tax rolls. We do not believe the government was required to go this far. As the Commissioner points out, the return of Jones’ mail marked “unclaimed” did not necessarily mean that 717 North Bryan Street was an incorrect address; it merely informed the Commissioner that no one appeared to sign for the mail before the designated date on which it would be returned to the sender. An open-ended search for a new address—especially when the State obligates the taxpayer to keep his address updated with the tax collector, see Ark. Code Ann. §26–35–705 (1997)—imposes burdens on the State significantly greater than the several relatively easy options outlined above. The Commissioner complains about the burden of even those additional steps, but his argument is belied by Arkansas’ current requirement that notice to homestead owners be accomplished by personal service if certified mail is returned, §26–37–301(e) (Supp. 2005), and the fact that Arkansas transfers the cost of notice to the taxpayer or the tax sale purchaser, §26–37–104(a). The Commissioner has offered no estimate of how many notice letters are returned, and no facts to support the dissent’s assertion that the Commissioner must now physically locate “tens of thousands of properties every year.” Post, at 10. Citing our decision in Greene v. Lindsey, the Solicitor General adds that posted notice could be taken down by children or vandals. But in Greene, we noted that outside the specific facts of that case, posting notice on real property is “a singularly appropriate and effective way of ensuring that a person … is actually apprised of proceedings against him.” 456 U. S., at 452–453. Successfully providing notice is often the most efficient way to collect unpaid taxes, see Mennonite, 462 U. S., at 800, n. 5 (more effective notice may ease burden on State if recipient arranges to pay delinquent taxes prior to tax sale); Tr. of Oral Arg. 24 (85 percent of tax delinquent properties in Arkansas are redeemed upon notice of delinquency), but rather than taking relatively easy additional steps to effect notice, the State undertook the burden and expense of purchasing a newspaper advertisement, conducting an auction, and then negotiating a private sale of the property to Flowers. The Solicitor General argues that requiring further effort when the government learns that notice was not delivered will cause the government to favor modes of providing notice that do not generate additional information—for example, starting (and stopping) with regular mail instead of certified mail. We find this unlikely, as we have no doubt that the government repeatedly finds itself being asked to prove that notice was sent and received. Using certified mail provides the State with documentation of personal delivery and protection against false claims that notice was never received. That added security, however, comes at a price—the State also learns when notice has not been received. We conclude that, under the circumstances presented, the State cannot simply ignore that information in proceeding to take and sell the owner’s property—any more than it could ignore the information that the owner in Robinson was in jail, or that the owner in Covey was incompetent. Though the Commissioner argues that followup measures are not constitutionally required, he reminds us that the State did make some attempt to follow up with Jones by publishing notice in the newspaper a few weeks before the public sale. Several decades ago, this Court observed that “[c]hance alone” brings a person’s attention to “an advertisement in small type inserted in the back pages of a newspaper,” Mullane, 339 U. S., at 315, and that notice by publication is adequate only where “it is not reasonably possible or practicable to give more adequate warning,” id., at 317. Following up by publication was not constitutionally adequate under the circumstances presented here because, as we have explained, it was possible and practicable to give Jones more adequate warning of the impending tax sale. The dissent forcefully articulates some basic principles about constitutionally required notice, principles from which we have no intention to depart. In particular, we disclaim any “new rule” that is “contrary to Dusenbery and a significant departure from Mullane.” Post, at 6. In Dusenbery, the Government was aware that someone at the prison had signed for the prisoner’s notice letter, and we determined that this attempt at notice was adequate, despite the fact that the State could have made notice more likely by requiring the prisoner to sign for the letter himself. 534 U. S., at 171. In this case, of course, the notice letter was returned to the Commissioner, informing him that his attempt at notice had failed. As for Mullane, it directs that “when notice is a person’s due … [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” 339 U. S., at 315. Mindful of the dissent’s concerns, we conclude, at the end of the day, that someone who actually wanted to alert Jones that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done. As noted, “[i]t is not our responsibility to prescribe the form of service that the [government] should adopt.” Greene, supra, at 455, n. 9. In prior cases finding notice inadequate, we have not attempted to redraft the State’s notice statute. See, e.g., Tulsa Professional, 485 U. S., at 490–491; Robinson, 409 U. S., at 40; Schroeder v. City of New York, 371 U. S. 208, 213–214 (1962); Walker, 352 U. S., at 116; Covey, 351 U. S., at 146–147. The State can determine how to proceed in response to our conclusion that notice was inadequate here, and the States have taken a variety of approaches to the present question. See n. 2, supra. It suffices for present purposes that we are confident that additional reasonable steps were available for Arkansas to employ before taking Jones’ property. * * * There is no reason to suppose that the State will ever be less than fully zealous in its efforts to secure the tax revenue it needs. The same cannot be said for the State’s efforts to ensure that its citizens receive proper notice before the State takes action against them. In this case, the State is exerting extraordinary power against a property owner—taking and selling a house he owns. It is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed. The Commissioner’s effort to provide notice to Jones of an impending tax sale of his house was insufficient to satisfy due process given the circumstances of this case. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 Most Courts of Appeals have also concluded that the Due Process Clause of the Fifth Amendment requires the Federal Government to take further reasonable steps in the property forfeiture context. See, e.g., United States v. Ritchie, 342 F. 3d 903, 911 (CA9 2003); Foehl v. United States, 238 F. 3d 474, 480 (CA3 2001); Small v. United States, 136 F. 3d 1334, 1337–1338 (CADC 1998); Torres v. $36,256.80 U. S. Currency, 25 F. 3d 1154, 1161 (CA2 1994); Barrera-Montenegro v. United States, 74 F. 3d 657, 660 (CA5 1996); United States v. Rodgers, 108 F. 3d 1247, 1252–1253 (CA10 1997); see also Garcia v. Meza, 235 F. 3d 287, 291 (CA7 2000) (declining to adopt a per se rule that only examines notice at the time it is sent, but also declining to impose an affirmative duty to seek out claimants in every case where notice is returned undelivered). But see Madewell v. Downs, 68 F. 3d 1030, 1047 (CA8 1995); Sarit v. United States Drug Enforcement Admin., 987 F. 2d 10, 14–15 (CA1 1993). Footnote 2 Many States require that notice be given to the occupants of the property as a matter of course. See Cal. Rev. & Tax. Code Ann. §3704.7 (West Supp. 2006); Ga. Code Ann. §48–4–45(a)(1)(B) (Supp. 2005); Ill. Comp. Stat., ch. 35, §§200/21–75(a), 200/22–10, 200/22–15 (West 2004); Me. Rev. Stat. Ann., Tit. 36, §1073 (1990); Md. Tax-Prop. Code Ann. §14–836(b)(4)(i)(2) (Lexis 2001); Mich. Comp. Laws Ann. §211.78i(3) (West 2005); Minn. Stat. §281.23(6) (2004); Mont. Code Ann. §§15–18–212(1)(a), (2)(A) (2005); N. D. Cent. Code Ann. §57–28–04(3) (Lexis 2005); Okla. Stat., Tit. 68, §3118(A) (West Supp. 2006); S. D. Codified Laws §10–25–5 (2004); Utah Code Ann. §59–2–1351(2)(a) (Lexis 2004); Wis. Stat. §75.12(1) (2003–2004); Wyo. Stat. Ann. §39–13–108(e)(v)(B) (2005). Some States require that notice be posted on the property or at the property owner’s last known address either at the outset, see Del. Code Ann., Tit. 9, §§8724, 8772 (1989 and Supp. 2004); Ga. Code Ann. §48–4–78(d) (Supp. 2005); Haw. Rev. Stat. §246–56 (2003); Md. Tax-Prop. Code Ann. §14–836(b)(6) (Lexis 2001); Okla. Stat., Tit. 68, §3118(A) (West Supp. 2006), or as a followup measure when personal service cannot be accomplished or certified mail is returned, see Fla. Stat. §197.522(2)(a) (2003); Minn. Stat. §281.23(6) (2004); S. C. Code Ann. §12–51–40(c) (Supp. 2005). And a few States require a diligent inquiry to find a property owner’s correct address when mailed notice is returned. See Miss. Code Ann. §27–43–3 (2002); Nev. Rev. Stat. §361.595(3)(b) (2003); Pa. Stat. Ann., Tit. 72, §5860.607a (Purdon 1990); R. I. Gen. Laws §44–9–25.1 (2005). See also 26 U. S. C. §6335(a) (requiring the Internal Revenue Service to make a reasonable attempt to personally serve notice on a delinquent taxpayer before relying upon notice by certified mail); 28 U. S. C. §3203(g)(1)(A)(i)(IV) (requiring written notice to tenants of real property subject to sale under the Federal Debt Collection Practices Act); 12 U. S. C. §3758(2)(A)(iii) (requiring written notice to occupants before foreclosure by the Secretary of Housing and Urban Development); §3758(2)(B)(ii) (requiring that notice be posted on the property if occupants are unknown).
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Finding three aggravating circumstances that were not outweighed by mitigating circumstances, a Kansas jury convicted respondent Marsh of, inter alia, capital murder and sentenced him to death. Marsh claimed on direct appeal that Kan. Stat. Ann. §21–4624(e) establishes an unconstitutional presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. Agreeing, the Kansas Supreme Court concluded that §21–4624(e)’s weighing equation violated the Eighth and Fourteenth Amendments and remanded for a new trial. Held: 1. This Court has jurisdiction to review the Kansas Supreme Court’s judgment under 28 U. S. C. §1257. That provision authorizes review of a State’s final judgment when a state statute’s validity is questioned on federal constitutional grounds, and it permits review even when the state-court proceedings are not complete where the federal claim has been finally decided and later review of the federal issue cannot be had, whatever the case’s outcome, Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 481. Although Marsh will be retried, the State Supreme Court’s determination that the death penalty statute is unconstitutional is final and binding on the lower state courts. Thus, the State will be unable to obtain further review of its law in this case. This Court has deemed lower court decisions final for §1257 purposes in like circumstances, see, e.g., Florida v. Meyers, 466 U. S. 380 (per curiam). Pp. 3–4. 2. The State Supreme Court’s judgment is not supported by adequate and independent state grounds. Marsh maintains that the judgment was based on state law, the State Supreme Court having previously reviewed the statute in State v. Kleypas. However, Kleypas itself rested on federal law. In this case, the State Supreme Court chastised the Kleypas court for avoiding the constitutional issue, squarely found §21–4624(e) unconstitutional on its face, and overruled Kleypas in relevant part. Pp. 4–5. 3. Kansas’ capital sentencing statute is constitutional. Pp. 5–19. (a) Walton v. Arizona, 497 U. S. 639, requires approval of the Kansas statute. There, the Court held that a state death penalty statute may give the defendant the burden to prove that mitigating circumstances outweigh aggravating circumstances. A fortiori, Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the two are in equipoise. Pp. 5–9. (b) Even if, as Marsh contends, Walton does not directly control here, general principles in this Court’s death penalty jurisprudence lead to the same conclusion. So long as a state system satisfies the requirements of Furman v. Georgia, 408 U. S. 238, and Gregg v. Georgia, 428 U. S. 153—that a system must rationally narrow the class of death-eligible defendants and must permit a jury to render a reasonable, individualized sentencing determination—a State has a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are weighed. The use of mitigation evidence is a product of the individual-sentencing requirement. Defendants have the right to present sentencers with information relevant to the sentencing decision and sentencers are obliged to consider that information in determining the appropriate sentence. The thrust of this Court’s mitigation jurisprudence ends here, for the Court has never held that the Constitution requires a specific method for balancing aggravating and mitigating factors. Pp. 9–11. (c) Kansas’ death penalty statute satisfies the constitutional mandates of Furman and its progeny because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. The State’s weighing equation merely channels a jury’s discretion by providing criteria by which the jury may determine whether life or death is appropriate. Its system provides the kind of guided discretion sanctioned in, e.g., Walton, supra. Contrary to Marsh’s argument, §21–4624(e) does not create a general presumption in favor of the death penalty. A life sentence must be imposed if the State fails to demonstrate the existence of an aggravating circumstance beyond a reasonable doubt, if the State cannot prove beyond a reasonable doubt that aggravating circumstances are not outweighed by mitigating circumstances, or if the jury is unable to reach a unanimous decision in any respect. Marsh’s contentions that an equipoise determination reflects juror confusion or inability to decide between life and death or that the jury may use equipoise as a loophole to shirk its constitutional duty to render a reasoned, moral sentencing decision rest on an implausible characterization of the Kansas statute—that a jury’s determination that aggravators and mitigators are in equipoise is not a decision, much less a decision for death. Weighing is not an end, but a means to reaching a decision. Kansas’ instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for death. Pp. 11–16. 278 Kan. 520, 102 P. 3d 445, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
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Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. Kan. Stat. Ann. §21–4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not. I Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19-month-old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M. P. burned to death. The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M. P. The jury also sentenced Marsh to life imprisonment without possibility of parole for 40 years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months’ imprisonment for aggravated arson and 34 months’ imprisonment for aggravated burglary. On direct appeal, Marsh challenged §21–4624(e), which reads: “If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K. S. A. 21–4625 … exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise the defendant shall be sentenced as provided by law.” Focusing on the phrase “shall be sentenced to death,” Marsh argued that §21–4624(e) establishes an unconstitutional presumption in favor of death because it directs imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. The Kansas Supreme Court agreed, and held that the Kansas death penalty statute, §21–4624(e), is facially unconstitutional. 278 Kan. 520, 534–535, 102 P. 3d 445, 458 (2004). The court concluded that the statute’s weighing equation violated the Eighth and Fourteenth Amendments of the United States Constitution because, “[i]n the event of equipoise, i.e., the jury’s determination that the balance of any aggravating circumstances and any mitigating circumstances weighed equal, the death penalty would be required.” Id., at 534, 102 P. 3d, at 457. The Kansas Supreme Court affirmed Marsh’s conviction and sentence for aggravated burglary and premeditated murder of Marry Ane, and reversed and remanded for new trial Marsh’s convictions for capital murder of M. P. and aggravated arson.[Footnote 1] We granted certiorari, 544 U. S. 1060 (2005), and now reverse the Kansas Supreme Court’s judgment that Kansas’ capital sentencing statute, Kan. Stat. Ann. §21–4624(e), is facially unconstitutional. II In addition to granting certiorari to review the constitutionality of Kansas’ capital sentencing statute, we also directed the parties to brief and argue: (1) whether we have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U. S. C. §1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); and (2) whether the Kansas Supreme Court’s judgment is supported by adequate state grounds independent of federal law. 544 U. S. 1060. Having considered the parties’ arguments, we conclude that we have jurisdiction in this case and that the constitutional issue is properly before the Court. A Title 28 U. S. C. §1257 authorizes this Court to review, by writ of certiorari, the final judgment of the highest court of a State when the validity of a state statute is questioned on federal constitutional grounds. This Court has determined that the foregoing authorization permits review of the judgment of the highest court of a State, even though the state-court proceedings are not yet complete, “where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case.” Cox Broadcasting, supra, at 481. Here, although Marsh will be retried on the capital murder and aggravated arson charges, the Kansas Supreme Court’s determination that Kansas’ death penalty statute is facially unconstitutional is final and binding on the lower state courts. Thus, the State will be unable to obtain further review of its death penalty law later in this case. If Marsh is acquitted of capital murder, double jeopardy and state law will preclude the State from appealing. If he is reconvicted, the State will be prohibited under the Kansas Supreme Court’s decision from seeking the death penalty, and there would be no opportunity for the State to seek further review of that prohibition. Although Marsh argues that a provision of the Kansas criminal appeals statute, Kan. Stat. Ann. §22–3602(b) (2003 Cum. Supp.), would permit the State to appeal the invalidation of Kansas’ death penalty statute, that contention is meritless. That statute provides for limited appeal in only four enumerated circumstances, none of which apply here. We have deemed lower court decisions final for 28 U. S. C. §1257 purposes in like circumstances, see Florida v. Meyers, 466 U. S. 380 (1984) (per curiam); South Dakota v. Neville, 459 U. S. 553 (1983); New York v. Quarles, 467 U. S. 649 (1984), and do so again here. B Nor is the Kansas Supreme Court’s decision supported by adequate and independent state grounds. Marsh maintains that the Kansas Supreme Court’s decision was based on the severability of §21–4624(e) under state law, and not the constitutionality of that provision under federal law, the latter issue having been resolved by the Kansas Supreme Court in State v. Kleypas, 272 Kan. 894, 40 P. 3d 139 (2001). Marsh’s argument fails. Kleypas, itself, rested on federal law. See id., at 899–903, 40 P. 3d, at 166–167. In rendering its determination here, the Kansas Supreme Court observed that Kleypas, “held that the weighing equation in K. S. A. 21–4624(e) as written was unconstitutional under the Eighth and Fourteenth Amendments” as applied to cases in which aggravating evidence and mitigating evidence are equally balanced. 278 Kan., at 534, 102 P. 3d, at 457. In this case, the Kansas Supreme Court chastised the Kleypas court for avoiding the constitutional issue of the statute’s facial validity, squarely held that §21–4624(e) is unconstitutional on its face, and overruled the portion of Kleypas upholding the statute through the constitutional avoidance doctrine and judicial revision. 278 Kan., at 534–535, 539–542, 102 P. 3d, at 458, 462. As in Kleypas, the Kansas Supreme Court clearly rested its decision here on the Eighth and Fourteenth Amendments to the United States Constitution. We, therefore, have jurisdiction to review its decision. See Michigan v. Long, 463 U. S. 1032, 1040–1041 (1983). III This case is controlled by Walton v. Arizona, 497 U. S. 639 (1990), overruled on other grounds, Ring v. Arizona, 536 U. S. 584 (2002). In that case, a jury had convicted Walton of a capital offense. At sentencing, the trial judge found the existence of two aggravating circumstances and that the mitigating circumstances did not call for leniency, and sentenced Walton to death. 497 U. S., at 645. The Arizona Supreme Court affirmed, and this Court granted certiorari to resolve the conflict between the Arizona Supreme Court’s decision in State v. Walton, 159 Ariz. 571, 769 P. 2d 1017 (1989) (en banc) (holding the Arizona death penalty statute constitutional), and the Ninth Circuit’s decision in Adamson v. Ricketts, 865 F. 2d 1011, 1043–1044 (1988) (en banc) (finding the Arizona death penalty statute unconstitutional because, “in situations where the mitigating and aggravating circumstances are in balance, or, where the mitigating circumstances give the court reservation but still fall below the weight of the aggravating circumstances, the statute bars the court from imposing a sentence less than death”). See Walton, 497 U. S., at 647. Consistent with the Ninth Circuit’s conclusion in Adamson, Walton argued to this Court that the Arizona capital sentencing system created an unconstitutional presumption in favor of death because it “tells an Arizona sentencing judge who finds even a single aggravating factor, that death must be imposed, unless—as the Arizona Supreme Court put it in Petitioner’s case—there are ‘outweighing mitigating factors.’ ” Brief for Petitioner in Walton v. Arizona, O. T. 1989, No. 88–7351, p. 33; see also id., at 34 (arguing that the statute is unconstitutional because the defendant “ ‘must … bear the risk of nonpersuasion that any mitigating circumstance will not outweigh the aggravating circumstance’ ” (alteration omitted)). Rejecting Walton’s argument, see 497 U. S., at 650, 651, this Court stated: “So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” Id., at 650. This Court noted that, as a requirement of individualized sentencing, a jury must have the opportunity to consider all evidence relevant to mitigation, and that a state statute that permits a jury to consider any mitigating evidence comports with that requirement. Id., at 652 (citing Blystone v. Pennsylvania, 494 U. S. 299, 307 (1990)). The Court also pointedly observed that while the Constitution requires that a sentencing jury have discretion, it does not mandate that discretion be unfettered; the States are free to determine the manner in which a jury may consider mitigating evidence. 497 U. S., at 652 (citing Boyde v. California, 494 U. S. 370, 374 (1990)). So long as the sentencer is not precluded from considering relevant mitigating evidence, a capital sentencing statute cannot be said to impermissibly, much less automatically, impose death. 497 U. S., at 652 (citing Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), and Roberts v. Louisiana, 428 U. S. 325 (1976) (plurality opinion)). Indeed, Walton suggested that the only capital sentencing systems that would be impermissibly mandatory were those that would “automatically impose death upon conviction for certain types of murder.” 497 U. S., at 652. Contrary to Marsh’s contentions and the Kansas Supreme Court’s conclusions, see 278 Kan., at 536–538, 102 P. 3d, at 459, the question presented in the instant case was squarely before this Court in Walton. Though, as Marsh notes, the Walton Court did not employ the term “equipoise,” that issue undeniably gave rise to the question this Court sought to resolve, and it was necessarily included in Walton’s argument that the Arizona system was unconstitutional because it required the death penalty unless the mitigating circumstances outweighed the aggravating circumstances. See supra, at 5. Moreover, the dissent in Walton reinforces what is evident from the opinion and the judgment of the Court—that the equipoise issue was before the Court, and that the Court resolved the issue in favor of the State. Indeed, the “equipoise” issue was, in large measure, the basis of the Walton dissent. See 497 U. S., at 687–688 (opinion of Blackmun, J.) (“If the mitigating and aggravating circumstances are in equipoise, the [Arizona] statute requires that the trial judge impose capital punishment. The assertion that a sentence of death may be imposed in such a case runs directly counter to the Eighth Amendment requirement that a capital sentence must rest upon a ‘determination that death is the appropriate punishment in a specific case’ ”). Thus, although Walton did not discuss the equipoise issue explicitly, that issue was resolved by its holding. Cf. post, at 2 (Stevens, J., dissenting); cf. also post, at 2, n. 1 (Souter, J., dissenting). Our conclusion that Walton controls here is reinforced by the fact that the Arizona and Kansas statutes are comparable in important respects. Similar to the express language of the Kansas statute, the Arizona statute at issue in Walton has been consistently construed to mean that the death penalty will be imposed upon a finding that aggravating circumstances are not outweighed by mitigating circumstances.[Footnote 2] See State v. Ysea, 191 Ariz. 372, 375, 956 P. 2d 499, 502 (1998) (en banc); State v. Gretzler, 135 Ariz. 42, 55, 659 P. 2d 1, 14 (1983) (in banc); Adamson, 865 F. 2d, at 1041–1043. Like the Kansas statute, the Arizona statute places the burden of proving the existence of aggravating circumstances on the State, and both statutes require the defendant to proffer mitigating evidence. The statutes are distinct in one respect. The Arizona statute, once the State has met its burden, tasks the defendant with the burden of proving sufficient mitigating circumstances to overcome the aggravating circumstances and that a sentence less than death is therefore warranted. In contrast, the Kansas statute requires the State to bear the burden of proving to the jury, beyond a reasonable doubt, that aggravators are not outweighed by mitigators and that a sentence of death is therefore appropriate; it places no additional evidentiary burden on the capital defendant. This distinction operates in favor of Kansas capital defendants. Otherwise the statutes function in substantially the same manner and are sufficiently analogous for our purposes. Thus, Walton is not distinguishable from the instant case. Accordingly, the reasoning of Walton requires approval of the Kansas death penalty statute. At bottom, in Walton, the Court held that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances. A fortiori, Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise. IV A Even if, as Marsh contends, Walton does not directly control, the general principles set forth in our death penalty jurisprudence would lead us to conclude that the Kansas capital sentencing system is constitutionally permissible. Together, our decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Gregg v. Georgia, 428 U. S. 153 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), establish that a state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime. See id., at 189. So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed. See Franklin v. Lynaugh, 487 U. S. 164, 179 (1988) (plurality opinion) (citing Zant v. Stephens, 462 U. S. 862, 875–876, n. 13 (1983)). The use of mitigation evidence is a product of the requirement of individualized sentencing. See Graham v. Collins, 506 U. S. 461, 484–489 (1993) (Thomas, J., concurring) (discussing the development of mitigation precedent). In Lockett v. Ohio, 438 U. S. 586, 604 (1978), a plurality of this Court held that “the Eighth and Fourteenth Amendments require that the sentencer … not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Emphasis in original.) The Court has held that the sentencer must have full access to this “ ‘highly relevant’ ” information. Id., at 603 (alteration omitted) (quoting Williams v. New York, 337 U. S. 241, 247 (1949)). Thus, in Lockett, the Court struck down the Ohio death penalty statute as unconstitutional because, by limiting a jury’s consideration of mitigation to three factors specified in the statute, it prevented sentencers in capital cases from giving independent weight to mitigating evidence militating in favor of a sentence other than death. 438 U. S., at 604–605. Following Lockett, in Eddings v. Oklahoma, 455 U. S. 104 (1982), a majority of the Court held that a sentencer may not categorically refuse to consider any relevant mitigating evidence. Id., at 114; see also Skipper v. South Carolina, 476 U. S. 1, 3–4 (1986) (discussing Eddings). In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” Franklin, supra, at 179 (citing Zant, supra, at 875–876, n. 13). Rather, this Court has held that the States enjoy “ ‘a constitutionally permissible range of discretion in imposing the death penalty.’ ” Blystone, 494 U. S., at 308 (quoting McCleskey v. Kemp, 481 U. S. 279, 305–306 (1987)). See also 494 U. S., at 307 (stating that “[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence”); Graham, supra, at 490 (Thomas, J., concurring) (stating that “[o]ur early mitigating cases may thus be read as doing little more than safeguarding the adversary process in sentencing proceedings by conferring on the defendant an affirmative right to place his relevant evidence before the sentencer”). B The Kansas death penalty statute satisfies the constitutional mandates of Furman and its progeny because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not interfere, in a constitutionally significant way, with a jury’s ability to give independent weight to evidence offered in mitigation. Kansas’ procedure narrows the universe of death-eligible defendants consistent with Eighth Amendment requirements. Under Kansas law, imposition of the death penalty is an option only after a defendant is convicted of capital murder, which requires that one or more specific elements beyond intentional premeditated murder be found. See Kan. Stat. Ann. §21–3439. Once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing, §§21–4706(c) (2003 Cum. Supp.), 21–4624(a); App. 23 (Instruction No. 2), and proves beyond a reasonable doubt the existence of one or more statutorily enumerated aggravating circumstances. Kan. Stat. Ann. §§21–4624(c), (e), and 21–4625; App. 24 (Instruction No. 3). Consonant with the individualized sentencing requirement, a Kansas jury is permitted to consider any evidence relating to any mitigating circumstance in determining the appropriate sentence for a capital defendant, so long as that evidence is relevant. §21–4624(c). Specifically, jurors are instructed: “A mitigating circumstance is that which in fairness or mercy may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, although it does not justify or excuse the offense. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case. “The appropriateness of the exercise of mercy can itself be a mitigating factor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty is warranted.” Id., at 24 (Instruction No. 4).[Footnote 3] Jurors are then apprised of, but not limited to, the factors that the defendant contends are mitigating. Id., at 25–26. They are then instructed that “[e]ach juror must consider every mitigating factor that he or she individually finds to exist.” Id., at 26. Kansas’ weighing equation, ibid. (Instruction No. 5), merely channels a jury’s discretion by providing it with criteria by which it may determine whether a sentence of life or death is appropriate. The system in Kansas provides the type of “ ‘guided discretion,’ ” Walton, 497 U. S., at 659 (citing Gregg, 428 U. S., at 189), we have sanctioned in Walton, Boyde, and Blystone. Indeed, in Boyde, this Court sanctioned a weighing jury instruction that is analytically indistinguishable from the Kansas jury instruction under review today. The Boyde jury instruction read: “ ‘If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.’ ” 494 U. S., at 374 (emphasis in original). Boyde argued that the mandatory language of the instruction prevented the jury from rendering an individualized sentencing determination. This Court rejected that argument, concluding that it was foreclosed by Blystone, where the Court rejected a nearly identical challenge to the Pennsylvania death penalty statute. 494 U. S., at 307.[Footnote 4] In so holding, this Court noted that the mandatory language of the statute did not prevent the jury from considering all relevant mitigating evidence. Boyde, 494 U. S., at 374. Similarly here, §21–4624(e) does not prevent a Kansas jury from considering mitigating evidence. Marsh’s argument that the Kansas provision is impermissibly mandatory is likewise foreclosed.[Footnote 5] Contrary to Marsh’s argument, §21–4624(e) does not create a general presumption in favor of the death penalty in the State of Kansas. Rather, the Kansas capital sentencing system is dominated by the presumption that life imprisonment is the appropriate sentence for a capital conviction. If the State fails to meet its burden to demonstrate the existence of an aggravating circumstance(s) beyond a reasonable doubt, a sentence of life imprisonment must be imposed. §21–4624(e); App. 27 (Instruction No. 10). If the State overcomes this hurdle, then it bears the additional burden of proving beyond a reasonable doubt that aggravating circumstances are not outweighed by mitigating circumstances. Ibid. (Instruction No. 10); id., at 26 (Instruction No. 5). Significantly, although the defendant appropriately bears the burden of proffering mitigating circumstances—a burden of production—he never bears the burden of demonstrating that mitigating circumstances outweigh aggravating circumstances. Instead, the State always has the burden of demonstrating that mitigating evidence does not outweigh aggravating evidence. Absent the State’s ability to meet that burden, the default is life imprisonment. Moreover, if the jury is unable to reach a unanimous decision—in any respect—a sentence of life must be imposed. §21–4624(c); App. 28 (Instruction No. 12). This system does not create a presumption that death is the appropriate sentence for capital murder.[Footnote 6] Nor is there any force behind Marsh’s contention that an equipoise determination reflects juror confusion or inability to decide between life and death, or that a jury may use equipoise as a loophole to shirk its constitutional duty to render a reasoned, moral decision, see California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring), regarding whether death is an appropriate sentence for a particular defendant. Such an argument rests on an implausible characterization of the Kansas statute—that a jury’s determination that aggravators and mitigators are in equipoise is not a decision, much less a decision for death—and thus misses the mark. Cf. post, at 4–5 (Souter, J., dissenting) (arguing that Kansas’ weighing equation undermines individualized sentencing). Weighing is not an end; it is merely a means to reaching a decision. The decision the jury must reach is whether life or death is the appropriate punishment. The Kansas jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for—not a presumption in favor of—death. Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that mitigators do not outweigh aggravators—including a finding that aggravators and mitigators are in balance—is a decision that death is the appropriate sentence; and an inability to reach a unanimous decision will result in a sentence of life imprisonment. So informed, far from the abdication of duty or the inability to select an appropriate sentence depicted by Marsh and Justice Souter, a jury’s conclusion that aggravating evidence and mitigating evidence are in equipoise is a decision for death and is indicative of the type of measured, normative process in which a jury is constitutionally tasked to engage when deciding the appropriate sentence for a capital defendant. V Justice Souter argues (hereinafter the dissent) that the advent of DNA testing has resulted in the “exoneratio[n]” of “innocent” persons “in numbers never imagined before the development of DNA tests.” Post, at 5–6. Based upon this “new empirical demonstration of how ‘death is different,’ ” post, at 8, the dissent concludes that Kansas’ sentencing system permits the imposition of the death penalty in the absence of reasoned moral judgment. But the availability of DNA testing, and the questions it might raise about the accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the question before the Court today, namely, the constitutionality of Kansas’ capital sentencing system. Accordingly, the accuracy of the dissent’s factual claim that DNA testing has established the “innocence” of numerous convicted persons under death sentences—and the incendiary debate it invokes—is beyond the scope of this opinion.[Footnote 7] The dissent’s general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose. While such a bright-line rule may be easily applied, it has no basis in law. Indeed, the logical consequence of the dissent’s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this Court to chip away at the States’ prerogatives to do so on the grounds the dissent invokes today. * * * We hold that the Kansas capital sentencing system, which directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise, is constitutional. Accordingly, we reverse the judgment of the Kansas Supreme Court, and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The Kansas Supreme Court found that the trial court committed reversible error by excluding circumstantial evidence of third-party guilt connecting Eric Pusch, Marry Ane’s husband, to the crimes, and, accordingly ordered a new trial on this ground. 278 Kan., at 528–533, 102 P. 3d, at 454–457. Footnote 2 Ariz. Rev. Stat. Ann. §13–703(E) (Supp. 2005) provides: “In determining whether to impose a sentence of death or life imprisonment, the trier of fact shall take into account the aggravating and mitigating circumstances that have been proven. The trier of fact shall impose a sentence of death if the trier of fact finds one or more of the aggravating circumstances enumerated in subsection F of this section and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency.” Footnote 3 The “mercy” jury instruction alone forecloses the possibility of Furman-type error as it “eliminate[s] the risk that a death sentence will be imposed in spite of facts calling for a lesser penalty.” Post, at 4 (Souter, J., dissenting). Footnote 4 In Blystone, the Pennsylvania statute authorized imposition of a death sentence if the jury concluded “that the aggravating circumstances outweigh[ed] the mitigating circumstances present in the particular crime committed by the particular defendant, or that there [were] no such mitigating circumstances.” 494 U. S., at 305. Footnote 5 Contrary to Justice Souter’s assertion, the Court’s decisions in Boyde and Blystone did not turn on the “predominance of the aggravators” in those cases. Post, at 3 (dissenting opinion.). Rather, those decisions plainly turned on the fact that the mandatory language of the respective statutes did not prevent the sentencing jury from “consider[ing] and giv[ing] effect to all relevant mitigating evidence.” Blystone, supra, at 305. See also Boyde, 494 U. S., at 377 (“[T]he legal principle we expounded in Blystone clearly requires rejection of Boyde’s claim as well, because the mandatory language of [California jury instruction] 8.84.2 is not alleged to have interfered with the consideration of mitigating evidence”). The language of the Kansas statute at issue here no more “dictate[s] death,” post, at 3, than the mandatory language at issue in Boyde and Blystone. See Blystone, supra, at 305 (explaining that the Pennsylvania statute is not “ ‘mandatory’ as that term was understood in Woodson [v. North Carolina, 428 U. S. 280 (1976)] or Roberts [v. Louisiana, 428 U. S. 325 (1976)]” because “[d]eath is not automatically imposed upon conviction for certain types of murder”). Footnote 6 Additionally, Marsh’s argument turns on reading §21–4624(e) in isolation. Such a reading, however, is contrary to “ ‘the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” Boyde v. California, 494 U. S. 370, 378 (1990) (citing Boyd v. United States, 271 U. S. 104, 107 (1926)). The constitutionality of a State’s death penalty system turns on review of that system in context. We thus reject his disengaged interpretation of §21–4624(e). Footnote 7 But see The Penalty of Death, in Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case, 117, 127–132, 134, (H. Bedau & P. Cassell eds. 2004). See also Comment, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121, 126–145 (1988) (examining accuracy in use of the term “innocent” in death penalty studies and literature); Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501, 508 (2005) ( “[w]ords like ‘innocence’ convey enormous moral authority and are intended to drive the public debate by appealing to a deep and universal revulsion at the idea that someone who is genuinely blameless could wrongly suffer for a crime in which he had no involvement”); People v. Smith, 185 Ill. 2d 532, 545, 708 N. E. 2d 365, 371 (1999) (“[w]hile a not guilty finding is sometimes equated with a finding of innocence, that conclusion is erroneous… . Rather, [a reversal of conviction] indicates simply that the prosecution has failed to meet its burden of proof”).
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The 1990 census resulted in a 3-seat increase over the 27 seats previously allotted the Texas congressional delegation. Although the Democratic Party then controlled 19 of those 27 seats, as well as both state legislative houses and the governorship, change was in the air: The Republican Party had received 47% of the 1990 statewide vote, while the Democrats had received only 51%. Faced with a possible Republican ascent to majority status, the legislature drew a congressional redistricting plan that favored Democratic candidates. The Republicans challenged the 1991 Plan as an unconstitutional partisan gerrymander, but to no avail. The 2000 census authorized two additional seats for the Texas delegation. The Republicans then controlled the governorship and the State Senate, but did not yet control the State House of Representatives. So constituted, the legislature was unable to pass a redistricting scheme, resulting in litigation and the necessity of a court-ordered plan to comply with the U. S. Constitution’s one-person, one-vote requirement. Conscious that the primary responsibility for drawing congressional districts lies with the political branches of government, and hesitant to undo the work of one political party for the benefit of another, the three-judge Federal District Court sought to apply only “neutral” redistricting standards when drawing Plan 1151C, including placing the two new seats in high-growth areas, following county and voting precinct lines, and avoiding the pairing of incumbents. Under Plan 1151C, the 2002 congressional elections resulted in a 17-to-15 Democratic majority in the Texas delegation, compared to a 59% to 40% Republican majority in votes for statewide office in 2000, thus leaving the 1991 Democratic gerrymander largely in place. In 2003, however, Texas Republicans gained control of both houses of the legislature and set out to increase Republican representation in the congressional delegation. After a protracted partisan struggle, the legislature enacted a new congressional districting map, Plan 1374C. In the 2004 congressional elections, Republicans won 21 seats to the Democrats’ 11, while also obtaining 58% of the vote in statewide races against the Democrats’ 41%. Soon after Plan 1374C was enacted, appellants challenged it in court, alleging a host of constitutional and statutory violations. In 2004 the District Court entered judgment for appellees, but this Court vacated the decision and remanded for consideration in light of Vieth v. Jubelirer, 541 U. S. 267. On remand, the District Court, believing the scope of its mandate was limited to questions of political gerrymandering, again rejected appellants’ claims. Held: The judgment is affirmed in part, reversed in part, and vacated in part, and the cases are remanded. 399 F. Supp. 2d 756, affirmed in part, reversed in part, vacated in part, and remanded. Justice Kennedy delivered the opinion of the Court with respect to Parts II–A and III, concluding: 1. This Court held, in Davis v. Bandemer, 478 U. S. 109, 118–127, that an equal protection challenge to a political gerrymander presents a justiciable case or controversy, although it could not agree on what substantive standard to apply, compare id., at 127–137, with id., at 161–162. That disagreement persists. The Vieth plurality would have held such challenges nonjusticiable political questions, but a majority declined to do so, see 541 U. S., at 306, 317, 343, 355. Justiciability is not revisited here. At issue is whether appellants offer a manageable, reliable measure of fairness for determining whether a partisan gerrymander is unconstitutional. P. 7. 2. Texas’ redrawing of District 23’s lines amounts to vote dilution violative of §2 of the Voting Rights Act of 1965. Pp. 17–36. (a) Plan 1374C’s changes to District 23 served the dual goals of increasing Republican seats and protecting the incumbent Republican against an increasingly powerful Latino population that threatened to oust him, with the additional political nuance that he would be reelected in a district that had a Latino majority as to voting age population, though not a Latino majority as to citizen voting age population or an effective Latino voting majority. The District 23 changes required adjustments elsewhere, so the State created new District 25 to avoid retrogression under §5 of the Act. Pp. 17–18. (b) A State violates §2 “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election … are not [as] equally open to … members of [a racial group as they are to] other members of the electorate.” 42 U. S. C. §1973(b). Thornburg v. Gingles, 478 U. S. 30, 50–51, identified three threshold conditions for establishing a §2 violation: (1) the racial group must be “sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) the group must be “politically cohesive”; and (3) the white majority must “vot[e] sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.” The legislative history identifies factors that courts can use, once all three threshold requirements are met, in interpreting §2’s “totality of circumstances” standard, including the State’s history of voting-related discrimination, the extent to which voting is racially polarized, and the extent to which the State has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group. See id., at 44–45. Another relevant consideration is whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area. Johnson v. De Grandy, 512 U. S. 997, 1000. The district court’s determination whether the §2 requirements are satisfied must be upheld unless clearly erroneous. See Gingles, supra, at 78–79. Where “the ultimate finding of dilution” is based on “a misreading of the governing law,” however, there is reversible error. De Grandy, supra, at 1022. Pp. 18–20. (c) Appellants have satisfied all three Gingles requirements as to District 23, and the creation of new District 25 does not remedy the problem. The second and third Gingles factors—Latino cohesion, majority bloc voting—are present, given the District Court’s finding of racially polarized voting in the District 23 and throughout the State. As to the first Gingles precondition—that the minority group be large and compact enough to constitute a majority in a single-member district, 478 U. S., at 50—appellants have established that Latinos could have had an opportunity district in District 23 had its lines not been altered and that they do not have one now. They constituted a majority of the citizen voting age population in District 23 under Plan 1151C. The District Court suggested incorrectly that the district was not a Latino opportunity district in 2002 simply because the incumbent prevailed. The fact that a group does not win elections does not resolve the vote dilution issue. De Grandy, 512 U. S., at 1014, n. 11. In old District 23 the increase in Latino voter registration and overall population, the concomitant rise in Latino voting power in each successive election, the near victory of the Latino candidate of choice in 2002, and the resulting threat to the incumbent’s continued election were the very reasons the State redrew the district lines. Since the redistricting prevented the immediate success of the emergent Latino majority in District 23, there was a denial of opportunity in the real sense of that term. Plan 1374C’s version of District 23, by contrast, is unquestionably not a Latino opportunity district. That Latinos are now a bare majority of the district’s voting-age population is not dispositive, since the relevant numbers must account for citizenship in order to determine the group’s opportunity to elect candidates, and Latinos do not now have a citizen voting-age majority in the district. The State’s argument that it met its §2 obligations by creating new District 25 as an offsetting opportunity district is rejected. In a district line-drawing challenge, “the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice.” Id., at 1008. The District Court’s finding that the current plan contains six Latino opportunity districts and that seven reasonably compact districts, as proposed by appellant GI Forum, could not be drawn was not clearly erroneous. However, the court failed to perform the required compactness inquiry between the number of Latino opportunity districts under the challenger’s proposal of reinstating Plan 1151C and the “existing number of reasonably compact districts.” Ibid. Section 2 does not forbid the creation of a noncompact majority-minority district, Bush v. Vera, 517 U. S. 952, 999, but such a district cannot remedy a violation elsewhere in the State, see Shaw v. Hunt, 517 U. S. 899, 916. The lower court recognized there was a 300-mile gap between the two Latino communities in District 25, and a similarly large gap between the needs and interests of the two groups. The court’s conclusion that the relative smoothness of the district lines made the district compact, despite this combining of discrete communities of interest, is inapposite because the court analyzed the issue only in the equal protection context, where compactness focuses on the contours of district lines to determine whether race was the predominant factor in drawing those lines. See Miller v. Johnson, 515 U. S. 900, 916–917. Under §2, by contrast, the injury is vote dilution, so the compactness inquiry considers “the compactness of the minority population, not … the compactness of the contested district.” Vera, 517 U. S., at 997. A district that “reaches out to grab small and apparently isolated minority communities” is not reasonably compact. Id., at 979. The lower court’s findings regarding the different characteristics, needs, and interests of the two widely scattered Latino communities in District 23 are well supported and uncontested. The enormous geographical distances separating the two communities, coupled with the disparate needs and interests of these populations—not either factor alone—renders District 25 noncompact for §2 purposes. Therefore, Plan 1374C contains only five reasonably compact Latino opportunity districts, one fewer than Plan 1151C. Pp. 20–29. (d) The totality of the circumstances demonstrates a §2 violation. The relevant proportionality inquiry, see De Grandy, 512 U. S., at 1000, compares the percentage of total districts that are Latino opportunity districts with the Latino share of the citizen voting-age population. The State’s contention that proportionality should be decided on a regional basis is rejected in favor of appellants’ assertion that their claim requires a statewide analysis because they have alleged statewide vote dilution based on a statewide plan. Looking statewide, there are 32 congressional districts. The five reasonably compact Latino opportunity districts amount to roughly 16% of the total, while Latinos make up 22% of Texas’ citizen voting-age population. Latinos are, therefore, two districts shy of proportional representation. Even deeming this disproportionality insubstantial would not overcome the other evidence of vote dilution for Latinos in District 23. The changes there undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive. Cf., e.g., id., at 1014. Against this background, the Latinos’ diminishing electoral support for the incumbent indicates their belief he was unresponsive to their particularized needs. In essence, the State took away their opportunity because they were about to exercise it. Even accepting the District Court’s finding that the State’s action was taken primarily for political, not racial, reasons, the redrawing of District 23’s lines was damaging to its Latino voters. The State not only made fruitless the Latinos’ mobilization efforts but also acted against those Latinos who were becoming most politically active. Although incumbency protection can be a legitimate factor in districting, see Karcher v. Daggett, 462 U. S. 725, 740, not all of its forms are in the interests of the constituents. If, as here, such protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters. This policy, whatever its validity in the political realm, cannot justify the effect on Latino voters. See Gingles, supra, at 45. Pp. 29–36. (e) Because Plan 1374C violates §2 in its redrawing of District 23, appellants’ First Amendment and equal protection claims with respect to that district need not be addressed. Their equal protection claim as to the drawing of District 25 need not be confronted because that district will have to be redrawn to remedy the District 23 violation. Pp. 36–37. Justice Kennedy concluded in Part II that because appellants have established no legally impermissible use of political classifications, they state no claim on which relief may be granted as to their contention that Texas’ statewide redistricting is an unconstitutional political gerrymander. Justice Souter and Justice Ginsburg joined Part II–D. Pp. 7–15. (a) Article I of the Constitution, §§2 and 4, gives “the States primary responsibility for apportionment of their … congressional … districts,” Growe v. Emison, 507 U. S. 25, 34, but §4 also permits Congress to set further requirements. Neither the Constitution nor Congress has stated any explicit prohibition of mid-decade redistricting to change districts drawn earlier in conformance with a decennial census. Although the legislative branch plays the primary role in congressional redistricting, courts have an important role when a districting plan violates the Constitution. See, e.g., Wesberry v. Sanders, 376 U. S. 1. That the federal courts sometimes must order legislative redistricting, however, does not shift the primary responsibility away from legislative bodies, see, e.g., Wise v. Lipscomb, 437 U. S. 535, 540, who are free to replace court-mandated remedial plans by enacting redistricting plans of their own, see, e.g., Upham v. Seamon, 456 U. S. 37, 44. Judicial respect for legislative plans, however, cannot justify legislative reliance on improper criteria for districting determinations. Pp. 7–10. (b) Appellants claim unpersuasively that a decision to effect mid-decennial redistricting, when solely motivated by partisan objectives, presumptively violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation. For a number of reasons, that test is unconvincing. There is some merit to the State’s assertion that partisan gain was not the sole motivation for replacing Plan 1151C: The contours of some contested district lines seem to have been drawn based on more mundane and local interests, and a number of line-drawing requests by Democratic state legislators were honored. Moreover, a successful test for identifying unconstitutional partisan gerrymandering must do what appellants’ sole-motivation theory explicitly disavows: show a burden, as measured by a reliable standard, on the complainants’ representational rights. See Vieth, supra, at 292–295, 307–308. Appellants’ sole-intent standard is no more compelling when it is linked to the circumstance that Plan 1374C is mid-decennial legislation. The Constitution’s text and structure and this Court’s cases indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own. Even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders. Appellants’ test would leave untouched the 1991 Texas redistricting, which entrenched a party on the verge of minority status, while striking down the 2003 redistricting plan, which resulted in the majority Republican Party capturing a larger share of the seats. A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it. Pp. 10–14. (c) Appellants’ political gerrymandering theory that mid-decade redistricting for exclusively partisan purposes violates the one-person, one-vote requirement is rejected. Although conceding that States operate under the legal fiction that their plans are constitutionally apportioned throughout a decade, see, e.g., Georgia v. Ashcroft, 539 U. S. 461, 488, n. 2, appellants contend that this fiction should not provide a safe harbor for a legislature that enacts a voluntary, mid-decade plan overriding a legal court-drawn plan. This argument mirrors appellants’ attack on mid-decennial redistricting solely motivated by partisan considerations and is unsatisfactory for the same reasons. Their further contention that the legislature intentionally sought to manipulate population variances when it enacted Plan 1374C is unconvincing because there is no District Court finding to that effect, and they present no specific evidence to support this serious allegation of bad faith. Because they have not demonstrated that the legislature’s decision to enact Plan 1374C constitutes a violation of the equal-population requirement, their subsidiary reliance on Larios v. Cox, 300 F. Supp. 2d 1320, summarily aff’d, 542 U. S. 947, is unavailing. Pp. 14–16. Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded in Part IV that the Dallas area redistricting does not violate §2 of the Voting Rights Act. Appellants allege that the Dallas changes dilute African-American voting strength because an African-American minority effectively controlled District 24 under Plan 1151C. However, before Plan 1374C, District 24 had elected an Anglo Democrat to Congress in every election since 1978. Since then, moreover, the incumbent has had no opposition in any of his primary elections, and African-Americans have consistently voted for him. African-Americans were the second-largest racial group in the district after Anglos, but had only 25.7% of the citizen voting age population. Even assuming that the first Gingles prong can accommodate appellants’ assertion that a §2 claim may be stated for a racial group that makes up less than 50% of the population, see, e.g., De Grandy, supra, at 1009, they must show they constitute “a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes,” Voinovich v. Quilter, 507 U. S. 146, 158. The District Court committed no clear error in rejecting questionable evidence that African-Americans have the ability to elect their candidate of choice in favor of other evidence that an African-American candidate of choice would not prevail. See Anderson v. Bessemer City, 470 U. S. 564, 574. That African-Americans had influence in the district does not suffice to state a §2 claim. If it did, it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions. See Georgia v. Ashcroft, 539 U. S. 461, 491. Id., at 480, 482, distinguished. Appellants do not raise a district-specific political gerrymandering claim against District 24. Pp. 37–41. The Chief Justice, joined by Justice Alito, agreed that appellants have not provided a reliable standard for identifying unconstitutional political gerrymanders, but noted that the question whether any such standard exists—i.e., whether a challenge to such a gerrymander presents a justiciable case or controversy—has not been argued in these cases. The Chief Justice and Justice Alito therefore take no position on that question, which has divided the Court, see Vieth v. Jubelirer, 541 U. S. 267, and join the plurality’s Part II disposition without specifying whether appellants have failed to state a claim on which relief can be granted or failed to present a justiciable controversy. Pp. 1–2. Justice Scalia, joined by Justice Thomas, concluded that appellants’ claims of unconstitutional political gerrymandering do not present a justiciable case or controversy, see Vieth v. Jubelirer, 541 U. S. 267, 271–306 (plurality opinion), and that their vote-dilution claims premised on §2 of the Voting Rights Act of 1965 lack merit for the reasons set forth in Justice Thomas’s opinion concurring in the judgment in Holder v. Hall, 512 U. S. 874, 891–946. Reviewing appellants’ race-based equal protection claims, Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded that the District Court did not commit clear error in rejecting appellant GI Forum’s assertion that the removal of Latino residents from District 23 constituted intentional vote dilution. Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, subjected the intentional creation of District 25 as a majority-minority district to strict scrutiny and held that standard satisfied because appellants conceded that the creation of this district was reasonably necessary to comply with §5 of the Voting Rights Act of 1965, which is a compelling state interest, and did not argue that Texas did more than that provision required it to do. Pp. 2–11. Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II–A and III, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an opinion with respect to Parts II–B and II–C, and an opinion with respect to Part II–D, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Alito, J., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as to Part III. Together with No. 05–254, Travis County, Texas, et al. v. Perry, Governor of Texas, et al., No. 05–276, Jackson et al. v. Perry, Governor of Texas, et al., and No. 05–439, GI Forum of Texas et al. v. Perry, Governor of Texas, et al., also on appeal from the same court.
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. This Court vacated that decision and remanded for consideration in light of Vieth v. Jubelirer, 541 U. S. 267 (2004). 543 U. S. 941 (2004). The District Court reexamined appellants’ political gerrymandering claims and, in a second careful opinion, again held for the defendants. Henderson v. Perry, 399 F. Supp. 2d 756 (2005). These appeals followed, and we noted probable jurisdiction. 546 U. S. ___ (2005). Appellants contend the new plan is an unconstitutional partisan gerrymander and that the redistricting statewide violates §2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. §1973. Appellants also contend that the use of race and politics in drawing lines of specific districts violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The three-judge panel, consisting of Circuit Judge Higginbotham and District Judges Ward and Rosenthal, brought considerable experience and expertise to the instant case, based on their knowledge of the State’s people, history, and geography. Judges Higginbotham and Ward, moreover, had served on the three-judge court that drew the plan the Texas Legislature replaced in 2003, so they were intimately familiar with the history and intricacies of the cases. We affirm the District Court’s dispositions on the statewide political gerrymandering claims and the Voting Rights Act claim against District 24. We reverse and remand on the Voting Rights Act claim with respect to District 23. Because we do not reach appellants’ race-based equal protection claim or the political gerrymandering claim as to District 23, we vacate the judgment of the District Court on these claims. I To set out a proper framework for the case, we first recount the history of the litigation and recent districting in Texas. An appropriate starting point is not the reapportionment in 2000 but the one from the census in 1990. The 1990 census resulted in a 30-seat congressional delegation for Texas, an increase of 3 seats over the 27 representatives allotted to the State in the decade before. See Bush v. Vera, 517 U. S. 952, 956–957 (1996). In 1991 the Texas Legislature drew new district lines. At the time, the Democratic Party controlled both houses in the state legislature, the governorship, and 19 of the State’s 27 seats in Congress. Yet change appeared to be on the horizon. In the previous 30 years the Democratic Party’s post-Reconstruction dominance over the Republican Party had eroded, and by 1990 the Republicans received 47% of the statewide vote, while the Democrats received 51%. Henderson, supra, at 763; Brief for Appellee Perry et al. in No. 05–204, etc., p. 2 (hereinafter Brief for State Appellees). Faced with a Republican opposition that could be moving toward majority status, the state legislature drew a congressional redistricting plan designed to favor Democratic candidates. Using then-emerging computer technology to draw district lines with artful precision, the legislature enacted a plan later described as the “shrewdest gerrymander of the 1990s.” M. Barone, R. Cohen, & C. Cook, Almanac of American Politics 2002, p. 1448 (2001). See Henderson, supra, at 767, and n. 47. Although the 1991 plan was enacted by the state legislature, Democratic Congressman Martin Frost was acknowledged as its architect. Session, supra, at 482. The 1991 plan “carefully constructs democratic districts ‘with incredibly convoluted lines’ and packs ‘heavily Republican’ suburban areas into just a few districts.” Henderson, supra, at 767, n. 47 (quoting M. Barone & R. Cohen, Almanac of American Politics 2004, p. 1510 (2003) (hereinafter 2004 Almanac)). Voters who considered this unfair and unlawful treatment sought to invalidate the 1991 plan as an unconstitutional partisan gerrymander, but to no avail. See Terrazas v. Slagle, 789 F. Supp. 828, 833 (WD Tex. 1992); Terrazas v. Slagle, 821 F. Supp. 1162, 1175 (WD Tex. 1993). The 1991 plan realized the hopes of Democrats and the fears of Republicans with respect to the composition of the Texas congressional delegation. The 1990’s were years of continued growth for the Texas Republican Party, and by the end of the decade it was sweeping elections for statewide office. Nevertheless, despite carrying 59% of the vote in statewide elections in 2000, the Republicans only won 13 congressional seats to the Democrats’ 17. Henderson, supra, at 763. These events likely were not forgotten by either party when it came time to draw congressional districts in conformance with the 2000 census and to incorporate two additional seats for the Texas delegation. The Republican Party controlled the governorship and the State Senate; it did not yet control the State House of Representatives, however. As so constituted, the legislature was unable to pass a redistricting scheme, resulting in litigation and the necessity of a court-ordered plan to comply with the Constitution’s one-person, one-vote requirement. See Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex., Nov. 14, 2001) (per curiam), summarily aff’d, 536 U. S. 919 (2002), App. E to Juris. Statement in No. 05–276, p. 202a. The congressional districting map resulting from the Balderas litigation is known as Plan 1151C. As we have said, two members of the three-judge court that drew Plan 1151C later served on the three-judge court that issued the judgment now under review. Thus we have the benefit of their candid comments concerning the redistricting approach taken in the Balderas litigation. Conscious that the primary responsibility for drawing congressional districts is given to political branches of government, and hesitant to “und[o] the work of one political party for the benefit of another,” the three-judge Balderas court sought to apply “only ‘neutral’ redistricting standards” when drawing Plan 1151C. Henderson, 399 F. Supp. 2d, at 768. Once the District Court applied these principles—such as placing the two new seats in high-growth areas, following county and voting precinct lines, and avoiding the pairing of incumbents—“the drawing ceased, leaving the map free of further change except to conform it to one-person, one-vote.” Ibid. Under Plan 1151C, the 2002 congressional elections resulted in a 17-to-15 Democratic majority in the Texas delegation, compared to a 59% to 40% Republican majority in votes for statewide office in 2000. Id., at 763–764. Reflecting on the Balderas Plan, the District Court in Henderson was candid to acknowledge “[t]he practical effect of this effort was to leave the 1991 Democratic Party gerrymander largely in place as a ‘legal’ plan.” Id., at 768. The continuing influence of a court-drawn map that “perpetuated much of [the 1991] gerrymander,” ibid., was not lost on Texas Republicans when, in 2003, they gained control of the State House of Representatives and, thus, both houses of the legislature. The Republicans in the legislature “set out to increase their representation in the congressional delegation.” Session, 298 F. Supp. 2d, at 471. See also id., at 470 (“There is little question but that the single-minded purpose of the Texas Legislature in enacting [a new plan] was to gain partisan advantage”). After a protracted partisan struggle, during which Democratic legislators left the State for a time to frustrate quorum requirements, the legislature enacted a new congressional districting map in October 2003. It is called Plan 1374C. The 2004 congressional elections did not disappoint the plan’s drafters. Republicans won 21 seats to the Democrats’ 11, while also obtaining 58% of the vote in statewide races against the Democrats’ 41%. Henderson, supra, at 764. Soon after Texas enacted Plan 1374C, appellants challenged it in court, alleging a host of constitutional and statutory violations. Initially, the District Court entered judgment against appellants on all their claims. See Session, 298 F. Supp. 2d, at 457; id., at 515 (Ward, J., concurring in part and dissenting in part). Appellants sought relief here and, after their jurisdictional statements were filed, this Court issued Vieth v. Jubelirer. Our order vacating the District Court judgment and remanding for consideration in light of Vieth was issued just weeks before the 2004 elections. See 543 U. S. 941 (Oct. 18, 2004). On remand, the District Court, believing the scope of its mandate was limited to questions of political gerrymandering, again rejected appellants’ claims. Henderson, 399 F. Supp. 2d, at 777–778. Judge Ward would have granted relief under the theory—presented to the court for the first time on remand—that mid-decennial redistricting violates the one-person, one-vote requirement, but he concluded such an argument was not within the scope of the remand mandate. Id., at 779, 784–785 (specially concurring). II A Based on two similar theories that address the mid-decade character of the 2003 redistricting, appellants now argue that Plan 1374C should be invalidated as an unconstitutional partisan gerrymander. In Davis v. Bandemer, 478 U. S. 109 (1986), the Court held that an equal protection challenge to a political gerrymander presents a justiciable case or controversy, id., at 118–127, but there was disagreement over what substantive standard to apply. Compare id., at 127–137 (plurality opinion) with id., at 161–162 (Powell, J., concurring in part and dissenting in part). That disagreement persists. A plurality of the Court in Vieth v. Jubelirer would have held such challenges to be nonjusticiable political questions, but a majority declined to do so. See 541 U. S., at 306 (Kennedy, J., concurring in judgment); id., at 317 (Stevens, J., dissenting); id., at 343 (Souter, J., dissenting); id., at 355 (Breyer, J., dissenting). We do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution. B Before addressing appellants’ arguments on mid-decade redistricting, it is appropriate to note some basic principles on the roles the States, Congress, and the courts play in determining how congressional districts are to be drawn. Article I of the Constitution provides: “Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . . . . . . . “Section 4. The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” This text, we have explained, “leaves with the States primary responsibility for apportionment of their federal congressional . . . districts.” Growe v. Emison, 507 U. S. 25, 34 (1993); see also Chapman v. Meier, 420 U. S. 1, 27 (1975) (“[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body”); Smiley v. Holm, 285 U. S. 355, 366–367 (1932) (reapportionment implicated State’s powers under Art. I, §4). Congress, as the text of the Constitution also provides, may set further requirements, and with respect to districting it has generally required single-member districts. See U. S. Const., Art. I, §4; 81 Stat. 581, 2 U. S. C. §2c; Branch v. Smith, 538 U. S. 254, 266–267 (2003). But see id., at 275 (plurality opinion) (multimember districts permitted by 55 Stat. 762, 2 U. S. C. §2a(c) in limited circumstances). With respect to a mid-decade redistricting to change districts drawn earlier in conformance with a decennial census, the Constitution and Congress state no explicit prohibition. Although the legislative branch plays the primary role in congressional redistricting, our precedents recognize an important role for the courts when a districting plan violates the Constitution. See, e.g., Wesberry v. Sanders, 376 U. S. 1 (1964). This litigation is an example, as we have discussed. When Texas did not enact a plan to comply with the one-person, one-vote requirement under the 2000 census, the District Court found it necessary to draw a redistricting map on its own. That the federal courts sometimes are required to order legislative redistricting, however, does not shift the primary locus of responsibility. “Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the ‘unwelcome obligation’ of the federal court to devise and impose a reapportionment plan pending later legislative action.” Wise v. Lipscomb, 437 U. S. 535, 540 (1978) (principal opinion) (quoting Connor v. Finch, 431 U. S. 407, 415 (1977)). Quite apart from the risk of acting without a legislature’s expertise, and quite apart from the difficulties a court faces in drawing a map that is fair and rational, see id., at 414–415, the obligation placed upon the Federal Judiciary is unwelcome because drawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance. That Congress is the federal body explicitly given constitutional power over elections is also a noteworthy statement of preference for the democratic process. As the Constitution vests redistricting responsibilities foremost in the legislatures of the States and in Congress, a lawful, legislatively enacted plan should be preferable to one drawn by the courts. It should follow, too, that if a legislature acts to replace a court-drawn plan with one of its own design, no presumption of impropriety should attach to the legislative decision to act. As the District Court noted here, Session, 298 F. Supp. 2d, at 460–461, our decisions have assumed that state legislatures are free to replace court-mandated remedial plans by enacting redistricting plans of their own. See, e.g., Upham v. Seamon, 456 U. S. 37, 44 (1982) (per curiam); Wise, supra, at 540 (principal opinion) (quoting Connor, supra, at 415); Burns v. Richardson, 384 U. S. 73, 85 (1966); Reynolds v. Sims, 377 U. S. 533, 587 (1964). Underlying this principle is the assumption that to prefer a court-drawn plan to a legislature’s replacement would be contrary to the ordinary and proper operation of the political process. Judicial respect for legislative plans, however, cannot justify legislative reliance on improper criteria for districting determinations. With these considerations in mind, we next turn to consider appellants’ challenges to the new redistricting plan. C Appellants claim that Plan 1374C, enacted by the Texas Legislature in 2003, is an unconstitutional political gerrymander. A decision, they claim, to effect mid-decennial redistricting, when solely motivated by partisan objectives, violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation. The mid-decennial nature of the redistricting, appellants say, reveals the legislature’s sole motivation. Unlike Vieth, where the legislature acted in the context of a required decennial redistricting, the Texas Legislature voluntarily replaced a plan that itself was designed to comply with new census data. Because Texas had “no constitutional obligation to act at all” in 2003, Brief for Appellant Jackson et al. in No. 05–276, p. 26, it is hardly surprising, according to appellants, that the District Court found “[t]here is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage” for the Republican majority over the Democratic minority, Session, supra, at 470. A rule, or perhaps a presumption, of invalidity when a mid-decade redistricting plan is adopted solely for partisan motivations is a salutary one, in appellants’ view, for then courts need not inquire about, nor parties prove, the discriminatory effects of partisan gerrymandering—a matter that has proved elusive since Bandemer. See Vieth, 541 U. S., at 281 (plurality opinion); Bandemer, 478 U. S., at 127. Adding to the test’s simplicity is that it does not quibble with the drawing of individual district lines but challenges the decision to redistrict at all. For a number of reasons, appellants’ case for adopting their test is not convincing. To begin with, the state appellees dispute the assertion that partisan gain was the “sole” motivation for the decision to replace Plan 1151C. There is some merit to that criticism, for the pejorative label overlooks indications that partisan motives did not dictate the plan in its entirety. The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew. As the District Court found, the contours of some contested district lines were drawn based on more mundane and local interests. Session, supra, at 472–473. The state appellees also contend, and appellants do not contest, that a number of line-drawing requests by Democratic state legislators were honored. Brief for State Appellees 34. Evaluating the legality of acts arising out of mixed motives can be complex, and affixing a single label to those acts can be hazardous, even when the actor is an individual performing a discrete act. See, e.g., Hartman v. Moore, 547 U. S. ___, ___ (2006) (slip op., at 9–10). When the actor is a legislature and the act is a composite of manifold choices, the task can be even more daunting. Appellants’ attempt to separate the legislature’s sole motive for discarding Plan 1151C from the complex of choices it made while drawing the lines of Plan 1374C seeks to avoid that difficulty. We are skeptical, however, of a claim that seeks to invalidate a statute based on a legislature’s unlawful motive but does so without reference to the content of the legislation enacted. Even setting this skepticism aside, a successful claim attempting to identify unconstitutional acts of partisan gerrymandering must do what appellants’ sole-motivation theory explicitly disavows: show a burden, as measured by a reliable standard, on the complainants’ representational rights. For this reason, a majority of the Court rejected a test proposed in Vieth that is markedly similar to the one appellants present today. Compare 541 U. S., at 336 (Stevens, J., dissenting) (“Just as race can be a factor in, but cannot dictate the outcome of, the districting process, so too can partisanship be a permissible consideration in drawing district lines, so long as it does not predominate”), and id., at 338 (“[A]n acceptable rational basis can be neither purely personal nor purely partisan”), with id., at 292–295 (plurality opinion), and id., at 307–308 (Kennedy, J., concurring in judgment). The sole-intent standard offered here is no more compelling when it is linked to the circumstance that Plan 1374C is mid-decennial legislation. The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders. Under appellants’ theory, a highly effective partisan gerrymander that coincided with decennial redistricting would receive less scrutiny than a bumbling, yet solely partisan, mid-decade redistricting. More concretely, the test would leave untouched the 1991 Texas redistricting, which entrenched a party on the verge of minority status, while striking down the 2003 redistricting plan, which resulted in the majority Republican Party capturing a larger share of the seats. A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it. Furthermore, compared to the map challenged in Vieth, which led to a Republican majority in the congressional delegation despite a Democratic majority in the statewide vote, Plan 1374C can be seen as making the party balance more congruent to statewide party power. To be sure, there is no constitutional requirement of proportional representation, and equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best. Nevertheless, a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority. See Gaffney v. Cummings, 412 U. S. 735, 754 (1973). By this measure, Plan 1374C can be seen as fairer than the plan that survived in Vieth and the two previous Texas plans—all three of which would pass the modified sole-intent test that Plan 1374C would fail. A brief for one of the amici proposes a symmetry standard that would measure partisan bias by “compar[ing] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote.” Brief for Gary King et al. 5. Under that standard the measure of a map’s bias is the extent to which a majority party would fare better than the minority party should their respective shares of the vote reverse. In our view amici’s proposed standard does not compensate for appellants’ failure to provide a reliable measure of fairness. The existence or degree of asymmetry may in large part depend on conjecture about where possible vote-switchers will reside. Even assuming a court could choose reliably among different models of shifting voter preferences, we are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs. Presumably such a challenge could be litigated if and when the feared inequity arose. Cf. Abbott Laboratories v. Gardner, 387 U. S. 136, 148 (1967). More fundamentally, the counterfactual plaintiff would face the same problem as the present, actual appellants: providing a standard for deciding how much partisan dominance is too much. Without altogether discounting its utility in redistricting planning and litigation, we conclude asymmetry alone is not a reliable measure of unconstitutional partisanship. In the absence of any other workable test for judging partisan gerrymanders, one effect of appellants’ focus on mid-decade redistricting could be to encourage partisan excess at the outset of the decade, when a legislature redistricts pursuant to its decennial constitutional duty and is then immune from the charge of sole-motivation. If mid-decade redistricting were barred or at least subject to close judicial oversight, opposition legislators would also have every incentive to prevent passage of a legislative plan and try their luck with a court that might give them a better deal than negotiation with their political rivals. See Henderson, 399 F. Supp. 2d, at 776–777. D Appellants’ second political gerrymandering theory is that mid-decade redistricting for exclusively partisan purposes violates the one-person, one-vote requirement. They observe that population variances in legislative districts are tolerated only if they “are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” Karcher v. Daggett, 462 U. S. 725, 730 (1983) (quoting Kirkpatrick v. Preisler, 394 U. S. 526, 531 (1969); internal quotation marks omitted). Working from this unchallenged premise, appellants contend that, because the population of Texas has shifted since the 2000 census, the 2003 redistricting, which relied on that census, created unlawful interdistrict population variances. To distinguish the variances in Plan 1374C from those of ordinary, 3-year-old districting plans or belatedly drawn court-ordered plans, appellants again rely on the voluntary, mid-decade nature of the redistricting and its partisan motivation. Appellants do not contend that a decennial redistricting plan would violate equal representation three or five years into the decade if the State’s population had shifted substantially. As they must, they concede that States operate under the legal fiction that their plans are constitutionally apportioned throughout the decade, a presumption that is necessary to avoid constant redistricting, with accompanying costs and instability. See Georgia v. Ashcroft, 539 U. S. 461, 488, n. 2 (2003); Reynolds, 377 U. S., at 583. Appellants agree that a plan implemented by a court in 2001 using 2000 population data also enjoys the benefit of the so-called legal fiction, presumably because belated court-drawn plans promote other important interests, such as ensuring a plan complies with the Constitution and voting rights legislation. In appellants’ view, however, this fiction should not provide a safe harbor for a legislature that enacts a voluntary, mid-decade plan overriding a legal court-drawn plan, thus “ ‘unnecessarily’ ” creating population variance “when there was no legal compulsion” to do so. Brief for Appellant Travis County et al. in No. 05–254, p. 18. This is particularly so, appellants say, when a legislature acts because of an exclusively partisan motivation. Under appellants’ theory this improper motive at the outset seems enough to condemn the map for violating the equal-population principle. For this reason, appellants believe that the State cannot justify under Karcher v. Daggett the population variances in Plan 1374C because they are the product of partisan bias and the desire to eliminate all competitive districts. As the District Court noted, this is a test that turns not on whether a redistricting furthers equal-population principles but rather on the justification for redrawing a plan in the first place. Henderson, supra, at 776. In that respect appellants’ approach merely restates the question whether it was permissible for the Texas Legislature to redraw the districting map. Appellants’ answer, which mirrors their attack on mid-decennial redistricting solely motivated by partisan considerations, is unsatisfactory for reasons we have already discussed. Appellants also contend that the legislature intentionally sought to manipulate population variances when it enacted Plan 1374C. There is, however, no District Court finding to that effect, and appellants present no specific evidence to support this serious allegation of bad faith. Because appellants have not demonstrated that the legislature’s decision to enact Plan 1374C constitutes a violation of the equal-population requirement, we find unavailing their subsidiary reliance on Larios v. Cox, 300 F. Supp. 2d 1320 (ND Ga. 2004) (per curiam), summarily aff’d, 542 U. S. 947 (2004). In Larios, the District Court reviewed the Georgia Legislature’s decennial redistricting of its State Senate and House of Representatives districts and found deviations from the equal-population requirement. The District Court then held the objectives of the drafters, which included partisan interests along with regionalist bias and inconsistent incumbent protection, did not justify those deviations. 300 F. Supp. 2d, at 1351–1352. The Larios holding and its examination of the legislature’s motivations were relevant only in response to an equal-population violation, something appellants have not established here. Even in addressing political motivation as a justification for an equal-population violation, moreover, Larios does not give clear guidance. The panel explained it “need not resolve the issue of whether or when partisan advantage alone may justify deviations in population” because the plans were “plainly unlawful” and any partisan motivations were “bound up inextricably” with other clearly rejected objectives. Id., at 1352. In sum, we disagree with appellants’ view that a legislature’s decision to override a valid, court-drawn plan mid-decade is sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders. We conclude that appellants have established no legally impermissible use of political classifications. For this reason, they state no claim on which relief may be granted for their statewide challenge. III Plan 1374C made changes to district lines in south and west Texas that appellants challenge as violations of §2 of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. The most significant changes occurred to District 23, which—both before and after the redistricting—covers a large land area in west Texas, and to District 25, which earlier included Houston but now includes a different area, a north-south strip from Austin to the Rio Grande Valley. After the 2002 election, it became apparent that District 23 as then drawn had an increasingly powerful Latino population that threatened to oust the incumbent Republican, Henry Bonilla. Before the 2003 redistricting, the Latino share of the citizen voting-age population was 57.5%, and Bonilla’s support among Latinos had dropped with each successive election since 1996. Session, 298 F. Supp. 2d, at 488–489. In 2002, Bonilla captured only 8% of the Latino vote, ibid., and 51.5% of the overall vote. Faced with this loss of voter support, the legislature acted to protect Bonilla’s incumbency by changing the lines—and hence the population mix—of the district. To begin with, the new plan divided Webb County and the city of Laredo, on the Mexican border, that formed the county’s population base. Webb County, which is 94% Latino, had previously rested entirely within District 23; under the new plan, nearly 100,000 people were shifted into neighboring District 28. Id., at 489. The rest of the county, approximately 93,000 people, remained in District 23. To replace the numbers District 23 lost, the State added voters in counties comprising a largely Anglo, Republican area in central Texas. Id., at 488. In the newly drawn district, the Latino share of the citizen voting-age population dropped to 46%, though the Latino share of the total voting-age population remained just over 50%. Id., at 489. These changes required adjustments elsewhere, of course, so the State inserted a third district between the two districts to the east of District 23, and extended all three of them farther north. New District 25 is a long, narrow strip that winds its way from McAllen and the Mexican border towns in the south to Austin, in the center of the State and 300 miles away. Id., at 502. In between it includes seven full counties, but 77% of its population resides in split counties at the northern and southern ends. Of this 77%, roughly half reside in Hidalgo County, which includes McAllen, and half are in Travis County, which includes parts of Austin. Ibid. The Latinos in District 25, comprising 55% of the district’s citizen voting-age population, are also mostly divided between the two distant areas, north and south. Id., at 499. The Latino communities at the opposite ends of District 25 have divergent “needs and interests,” id., at 502, owing to “differences in socio-economic status, education, employment, health, and other characteristics,” id., at 512. The District Court summed up the purposes underlying the redistricting in south and west Texas: “The change to Congressional District 23 served the dual goal of increasing Republican seats in general and protecting Bonilla’s incumbency in particular, with the additional political nuance that Bonilla would be reelected in a district that had a majority of Latino voting age population—although clearly not a majority of citizen voting age population and certainly not an effective voting majority.” Id., at 497. The goal in creating District 25 was just as clear: “[t]o avoid retrogression under §5” of the Voting Rights Act given the reduced Latino voting strength in District 23. Id., at 489. A The question we address is whether Plan 1374C violates §2 of the Voting Rights Act. A State violates §2 “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U. S. C. §1973(b). The Court has identified three threshold conditions for establishing a §2 violation: (1) the racial group is “ ‘ “sufficiently large and geographically compact to constitute a majority in a single-member district” ’ ”; (2) the racial group is “ ‘ “politically cohesive” ’ ”; and (3) the majority “ ‘ “vot[es] sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.” ’ ” Johnson v. De Grandy, 512 U. S. 997, 1006–1007 (1994) (quoting Growe, 507 U. S., at 40 (in turn quoting Thornburg v. Gingles, 478 U. S. 30, 50–51 (1986))). These are the so-called Gingles requirements. If all three Gingles requirements are established, the statutory text directs us to consider the “totality of circumstances” to determine whether members of a racial group have less opportunity than do other members of the electorate. De Grandy, supra, at 1011–1012; see also Abrams v. Johnson, 521 U. S. 74, 91 (1997). The general terms of the statutory standard “totality of circumstances” require judicial interpretation. For this purpose, the Court has referred to the Senate Report on the 1982 amendments to the Voting Rights Act, which identifies factors typically relevant to a §2 claim, including: “the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group . . . ; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State’s or the political subdivision’s use of the contested practice or structure is tenuous may have probative value.” Gingles, supra, at 44–45 (citing S. Rep. No. 97–417 (1982) (hereinafter Senate Report); pinpoint citations omitted). Another relevant consideration is whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area. De Grandy, supra, at 1000. The District Court’s determination whether the §2 requirements are satisfied must be upheld unless clearly erroneous. See Gingles, supra, at 78–79. Where “the ultimate finding of dilution” is based on “a misreading of the governing law,” however, there is reversible error. De Grandy, supra, at 1022. B Appellants argue that the changes to District 23 diluted the voting rights of Latinos who remain in the district. Specifically, the redrawing of lines in District 23 caused the Latino share of the citizen voting-age population to drop from 57.5% to 46%. The District Court recognized that “Latino voting strength in Congressional District 23 is, unquestionably, weakened under Plan 1374C.” Session, 298 F. Supp. 2d, at 497. The question is whether this weakening amounts to vote dilution. To begin the Gingles analysis, it is evident that the second and third Gingles preconditions—cohesion among the minority group and bloc voting among the majority population—are present in District 23. The District Court found “racially polarized voting” in south and west Texas, and indeed “throughout the State.” Session, supra, at 492–493. The polarization in District 23 was especially severe: 92% of Latinos voted against Bonilla in 2002, while 88% of non-Latinos voted for him. App. 134, Table 20 (expert Report of Allan J. Lichtman on Voting-Rights Issues in Texas Congressional Redistricting (Nov. 14, 2002) (hereinafter Lichtman Report)). Furthermore, the projected results in new District 23 show that the Anglo citizen voting-age majority will often, if not always, prevent Latinos from electing the candidate of their choice in the district. Session, supra, at 496–497. For all these reasons, appellants demonstrated sufficient minority cohesion and majority bloc voting to meet the second and third Gingles requirements. The first Gingles factor requires that a group be “sufficiently large and geographically compact to constitute a majority in a single-member district.” 478 U. S., at 50. Latinos in District 23 could have constituted a majority of the citizen voting-age population in the district, and in fact did so under Plan 1151C. Though it may be possible for a citizen voting-age majority to lack real electoral opportunity, the Latino majority in old District 23 did possess electoral opportunity protected by §2. While the District Court stated that District 23 had not been an effective opportunity district under Plan 1151C, it recognized the district was “moving in that direction.” Session, 298 F. Supp. 2d, at 489. Indeed, by 2002 the Latino candidate of choice in District 23 won the majority of the district’s votes in 13 out of 15 elections for statewide officeholders. Id., at 518 (Ward, J., concurring in part and dissenting in part). And in the congressional race, Bonilla could not have prevailed without some Latino support, limited though it was. State legislators changed District 23 specifically because they worried that Latinos would vote Bonilla out of office. Id., at 488. Furthermore, to the extent the District Court suggested that District 23 was not a Latino opportunity district in 2002 simply because Bonilla prevailed, see id., at 488, 495, it was incorrect. The circumstance that a group does not win elections does not resolve the issue of vote dilution. We have said that “the ultimate right of §2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race.” De Grandy, 512 U. S., at 1014, n. 11. In old District 23 the increase in Latino voter registration and overall population, Session, 298 F. Supp. 2d, at 523 (Ward, J., concurring in part and dissenting in part), the concomitant rise in Latino voting power in each successive election, the near-victory of the Latino candidate of choice in 2002, and the resulting threat to the Bonilla incumbency, were the very reasons that led the State to redraw the district lines. Since the redistricting prevented the immediate success of the emergent Latino majority in District 23, there was a denial of opportunity in the real sense of that term. Plan 1374C’s version of District 23, by contrast, “is unquestionably not a Latino opportunity district.” Id., at 496. Latinos, to be sure, are a bare majority of the voting-age population in new District 23, but only in a hollow sense, for the parties agree that the relevant numbers must include citizenship. This approach fits the language of §2 because only eligible voters affect a group’s opportunity to elect candidates. In sum, appellants have established that Latinos could have had an opportunity district in District 23 had its lines not been altered and that they do not have one now. Considering the district in isolation, the three Gingles requirements are satisfied. The State argues, nonetheless, that it met its §2 obligations by creating new District 25 as an offsetting opportunity district. It is true, of course, that “States retain broad discretion in drawing districts to comply with the mandate of §2.” Shaw v. Hunt, 517 U. S. 899, 917, n. 9 (1996) (Shaw II). This principle has limits, though. The Court has rejected the premise that a State can always make up for the less-than-equal opportunity of some individuals by providing greater opportunity to others. See id., at 917 (“The vote-dilution injuries suffered by these persons are not remedied by creating a safe majority-black district somewhere else in the State”). As set out below, these conflicting concerns are resolved by allowing the State to use one majority-minority district to compensate for the absence of another only when the racial group in each area had a §2 right and both could not be accommodated. As to the first Gingles requirement, it is not enough that appellants show the possibility of creating a majority-minority district that would include the Latinos in District 23. See Shaw II, supra, at 917, n. 9 (rejecting the idea that “a §2 plaintiff has the right to be placed in a majority-minority district once a violation of the statute is shown”). If the inclusion of the plaintiffs would necessitate the exclusion of others, then the State cannot be faulted for its choice. That is why, in the context of a challenge to the drawing of district lines, “the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice.” De Grandy, supra, at 1008. The District Court found that the current plan contains six Latino opportunity districts and that seven reasonably compact districts could not be drawn. Appellant GI Forum presented a plan with seven majority-Latino districts, but the District Court found these districts were not reasonably compact, in part because they took in “disparate and distant communities.” Session, supra, at 491–492, and n. 125. While there was some evidence to the contrary, the court’s resolution of the conflicting evidence was not clearly erroneous. A problem remains, though, for the District Court failed to perform a comparable compactness inquiry for Plan 1374C as drawn. De Grandy requires a comparison between a challenger’s proposal and the “existing number of reasonably compact districts.” 512 U. S., at 1008. To be sure, §2 does not forbid the creation of a noncompact majority-minority district. Bush v. Vera, 517 U. S., at 999 (Kennedy, J., concurring). The noncompact district cannot, however, remedy a violation elsewhere in the State. See Shaw II, supra, at 916 (unless “the district contains a ‘geographically compact’ population” of the racial group, “where that district sits, ‘there neither has been a wrong nor can be a remedy’ ” (quoting Growe, 507 U. S., at 41)). Simply put, the State’s creation of an opportunity district for those without a §2 right offers no excuse for its failure to provide an opportunity district for those with a §2 right. And since there is no §2 right to a district that is not reasonably compact, see Abrams, 521 U. S., at 91–92, the creation of a noncompact district does not compensate for the dismantling of a compact opportunity district. The Chief Justice claims compactness should be only a factor in the analysis, see post, at 16 (opinion concurring in part, concurring in judgment in part, and dissenting in part), but his approach comports neither with our precedents nor with the nature of the right established by §2. De Grandy expressly stated that the first Gingles prong looks only to the number of “reasonably compact districts.” 512 U. S., at 1008. Shaw II, moreover, refused to consider a noncompact district as a possible remedy for a §2 violation. 517 U. S., at 916. It is true Shaw II applied this analysis in the context of a State’s using compliance with §2 as a defense to an equal protection challenge, but the holding was clear: A State cannot remedy a §2 violation through the creation of a noncompact district. Ibid. Shaw II also cannot be distinguished based on the relative location of the remedial district as compared to the district of the alleged violation. The remedial district in Shaw II had a 20% overlap with the district the plaintiffs sought, but the Court stated “[w]e do not think this degree of incorporation could mean [the remedial district] substantially addresses the §2 violation.” Id., at 918; see also De Grandy, supra, at 1019 (expressing doubt about the idea that even within the same county, vote dilution in half the county could be compensated for in the other half). The overlap here is not substantially different, as the majority of Latinos who were in the old District 23 are still in the new District 23, but no longer have the opportunity to elect their candidate of choice. Apart from its conflict with De Grandy and Shaw II, The Chief Justice’s approach has the deficiency of creating a one-way rule whereby plaintiffs must show compactness but States need not (except, it seems, when using §2 as a defense to an equal protection challenge). The Chief Justice appears to accept that a plaintiff, to make out a §2 violation, must show he or she is part of a racial group that could form a majority in a reasonably compact district. Post, at 15. If, however, a noncompact district cannot make up for the lack of a compact district, then this is equally true whether the plaintiff or the State proposes the noncompact district. The District Court stated that Plan 1374C created “six Gingles Latino” districts, Session, 298 F. Supp. 2d, at 498, but it failed to decide whether District 25 was reasonably compact for §2 purposes. It recognized there was a 300-mile gap between the Latino communities in District 25, and a similarly large gap between the needs and interests of the two groups. Id., at 502. After making these observations, however, it did not make any finding about compactness. Id., at 502–504. It ruled instead that, despite these concerns, District 25 would be an effective Latino opportunity district because the combined voting strength of both Latino groups would allow a Latino-preferred candidate to prevail in elections. Ibid. The District Court’s general finding of effectiveness cannot substitute for the lack of a finding on compactness, particularly because the District Court measured effectiveness simply by aggregating the voting strength of the two groups of Latinos. Id., at 503–504. Under the District Court’s approach, a district would satisfy §2 no matter how noncompact it was, so long as all the members of a racial group, added together, could control election outcomes. The District Court did evaluate compactness for the purpose of deciding whether race predominated in the drawing of district lines. The Latinos in the Rio Grande Valley and those in Central Texas, it found, are “disparate communities of interest,” with “differences in socio-economic status, education, employment, health, and other characteristics.” Id., at 512. The court’s conclusion that the relative smoothness of the district lines made the district compact, despite this combining of discrete communities of interest, is inapposite because the court analyzed the issue only for equal protection purposes. In the equal protection context, compactness focuses on the contours of district lines to determine whether race was the predominant factor in drawing those lines. See Miller v. Johnson, 515 U. S. 900, 916–917 (1995). Under §2, by contrast, the injury is vote dilution, so the compactness inquiry embraces different considerations. “The first Gingles condition refers to the compactness of the minority population, not to the compactness of the contested district.” Vera, supra, at 997 (Kennedy, J., concurring); see also Abrams, supra, at 111 (Breyer, J., dissenting) (compactness to show a violation of equal protection, “which concerns the shape or boundaries of a district, differs from §2 compactness, which concerns a minority group’s compactness”); Shaw II, supra, at 916 (the inquiry under §2 is whether “the minority group is geographically compact” (internal quotation marks omitted)). While no precise rule has emerged governing §2 compactness, the “inquiry should take into account ‘traditional districting principles such as maintaining communities of interest and traditional boundaries.’ ” Abrams, supra, at 92 (quoting Vera, 517 U. S., at 977 (plurality opinion)); see also id., at 979 (A district that “reaches out to grab small and apparently isolated minority communities” is not reasonably compact). The recognition of nonracial communities of interest reflects the principle that a State may not “assum[e] from a group of voters’ race that they ‘think alike, share the same political interests, and will prefer the same candidates at the polls.’ ” Miller, supra, at 920 (quoting Shaw v. Reno, 509 U. S. 630, 647 (1993)). In the absence of this prohibited assumption, there is no basis to believe a district that combines two far-flung segments of a racial group with disparate interests provides the opportunity that §2 requires or that the first Gingles condition contemplates. “The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U. S. 461, 490 (2003); cf. post, at 20 (opinion of Roberts, C. J.). We do a disservice to these important goals by failing to account for the differences between people of the same race. While the District Court recognized the relevant differences, by not performing the compactness inquiry it failed to account for the significance of these differences under §2. In these cases the District Court’s findings regarding the different characteristics, needs, and interests of the Latino community near the Mexican border and the one in and around Austin are well supported and uncontested. Legitimate yet differing communities of interest should not be disregarded in the interest of race. The practical consequence of drawing a district to cover two distant, disparate communities is that one or both groups will be unable to achieve their political goals. Compactness is, therefore, about more than “style points,” post, at 3 (opinion of Roberts, C. J.); it is critical to advancing the ultimate purposes of §2, ensuring minority groups equal “opportunity … to participate in the political process and to elect representatives of their choice.” 42 U. S. C. §1973(b). (And if it were just about style points, it is difficult to understand why a plaintiff would have to propose a compact district to make out a §2 claim.) As witnesses who know the south and west Texas culture and politics testified, the districting in Plan 1374C “could make it more difficult for thinly financed Latino-preferred candidates to achieve electoral success and to provide adequate and responsive representation once elected.” Session, 298 F. Supp. 2d, at 502; see also id., at 503 (Elected officials from the region “testified that the size and diversity of the newly-configured districts could make it more difficult for the constituents in the Rio Grande Valley to control election outcomes”). We do not question the District Court’s finding that the groups’ combined voting strength would enable them to elect a candidate each prefers to the Anglos’ candidate of choice. We also accept that in some cases members of a racial group in different areas—for example, rural and urban communities—could share similar interests and therefore form a compact district if the areas are in reasonably close proximity. See Abrams, supra, at 111–112 (Breyer, J., dissenting). When, however, the only common index is race and the result will be to cause internal friction, the State cannot make this a remedy for a §2 violation elsewhere. We emphasize it is the enormous geographical distance separating the Austin and Mexican-border communities, coupled with the disparate needs and interests of these populations—not either factor alone—that renders District 25 noncompact for §2 purposes. The mathematical possibility of a racial bloc does not make a district compact. Since District 25 is not reasonably compact, Plan 1374C contains only five reasonably compact Latino opportunity districts. Plan 1151C, by contrast, created six such districts. The District Court did not find, and the State does not contend, that any of the Latino opportunity districts in Plan 1151C are noncompact. Contrary to The Chief Justice’s suggestion, post, at 10–11, moreover, the Latino population in old District 23 is, for the most part, in closer geographic proximity than is the Latino population in new District 25. More importantly, there has been no contention that different pockets of the Latino population in old District 23 have divergent needs and interests, and it is clear that, as set out below, the Latino population of District 23 was split apart particularly because it was becoming so cohesive. The Latinos in District 23 had found an efficacious political identity, while this would be an entirely new and difficult undertaking for the Latinos in District 25, given their geographic and other differences. Appellants have thus satisfied all three Gingles requirements as to District 23, and the creation of new District 25 does not remedy the problem. C We proceed now to the totality of the circumstances, and first to the proportionality inquiry, comparing the percentage of total districts that are Latino opportunity districts with the Latino share of the citizen voting-age population. As explained in De Grandy, proportionality is “a relevant fact in the totality of circumstances.” 512 U. S., at 1000. It does not, however, act as a “safe harbor” for States in complying with §2. Id., at 1017–1018; see also id., at 1025 (O’Connor, J., concurring) (proportionality “is always relevant evidence in determining vote dilution, but is never itself dispositive”); id., at 1027–1028 (Kennedy, J., concurring in part and concurring in judgment) (proportionality has “some relevance,” though “placing undue emphasis upon proportionality risks defeating the goals underlying the Voting Rights Act”). If proportionality could act as a safe harbor, it would ratify “an unexplored premise of highly suspect validity: that in any given voting jurisdiction . . . , the rights of some minority voters under §2 may be traded off against the rights of other members of the same minority class.” Id., at 1019; see also Shaw II, 517 U. S., at 916–918. The State contends that proportionality should be decided on a regional basis, while appellants say their claim requires the Court to conduct a statewide analysis. In De Grandy, the plaintiffs “passed up the opportunity to frame their dilution claim in statewide terms.” 512 U. S., at 1022. Based on the parties’ apparent agreement that the proper frame of reference was the Dade County area, the Court used that area to decide proportionality. Id., at 1022–1023. In these cases, on the other hand, appellants allege an “injury to African American and Hispanic voters throughout the State.” Complaint in Civ. Action No. 03C–356 (ED Tex.), pp. 1–2; see also First Amended Complaint in Civ. Action No. 2:03–354 (ED Tex.), pp. 1, 5, 7; Plaintiff’s First Amended Complaint in Civ. Action No. 2:03cv354 etc. (ED Tex.), pp. 4–5. The District Court, moreover, expressly considered the statewide proportionality argument. As a result, the question of the proper geographic scope for assessing proportionality now presents itself. We conclude the answer in these cases is to look at proportionality statewide. The State contends that the seven districts in south and west Texas correctly delimit the boundaries for proportionality because that is the only area of the State where reasonably compact Latino opportunity districts can be drawn. This argument, however, misunderstands the role of proportionality. We have already determined, under the first Gingles factor, that another reasonably compact Latino district can be drawn. The question now is whether the absence of that additional district constitutes impermissible vote dilution. This inquiry requires an “ ‘intensely local appraisal’ ” of the challenged district. Gingles, 478 U. S., at 79 (quoting Rogers v. Lodge, 458 U. S. 613, 622 (1982)); see also Gingles, supra, at 101 (O’Connor, J., concurring in judgment). A local appraisal is necessary because the right to an undiluted vote does not belong to the “minority as a group,” but rather to “its individual members.” Shaw II, supra, at 917. And a State may not trade off the rights of some members of a racial group against the rights of other members of that group. See De Grandy, supra, at 1019; Shaw II, supra, at 916–918. The question is therefore not “whether line-drawing in the challenged area as a whole dilutes minority voting strength,” post, at 13 (opinion of Roberts, C. J.), but whether line-drawing dilutes the voting strength of the Latinos in District 23. The role of proportionality is not to displace this local appraisal or to allow the State to trade off the rights of some against the rights of others. Instead, it provides some evidence of whether “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation.” 42 U. S. C. §1973(b). For this purpose, the State’s seven-district area is arbitrary. It just as easily could have included six or eight districts. Appellants have alleged statewide vote dilution based on a statewide plan, so the electoral opportunities of Latinos across the State can bear on whether the lack of electoral opportunity for Latinos in District 23 is a consequence of Plan 1374C’s redrawing of lines or simply a consequence of the inevitable ‘win some, lose some’ in a State with racial bloc voting. Indeed, several of the other factors in the totality of circumstances have been characterized with reference to the State as a whole. Gingles, supra, at 44–45 (listing Senate Report factors). Particularly given the presence of racially polarized voting—and the possible submergence of minority votes—throughout Texas, it makes sense to use the entire State in assessing proportionality. Looking statewide, there are 32 congressional districts. The five reasonably compact Latino opportunity districts amount to roughly 16% of the total, while Latinos make up 22% of Texas’ citizen voting-age population. (Appellant GI Forum claims, based on data from the 2004 American Community Survey of the U. S. Census Bureau, that Latinos constitute 24.5% of the statewide citizen voting-age population, but as this figure was neither available at the time of the redistricting, nor presented to the District Court, we accept the District Court’s finding of 22%.) Latinos are, therefore, two districts shy of proportional representation. There is, of course, no “magic parameter,” De Grandy, 512 U. S., at 1017, n. 14, and “rough proportionality,” id., at 1023, must allow for some deviations. We need not decide whether the two-district deficit in these cases weighs in favor of a §2 violation. Even if Plan 1374C’s disproportionality were deemed insubstantial, that consideration would not overcome the other evidence of vote dilution for Latinos in District 23. “[T]he degree of probative value assigned to proportionality may vary with other facts,” id., at 1020, and the other facts in these cases convince us that there is a §2 violation. District 23’s Latino voters were poised to elect their candidate of choice. They were becoming more politically active, with a marked and continuous rise in Spanish-surnamed voter registration. See Lichtman Report, App. 142–143. In successive elections Latinos were voting against Bonilla in greater numbers, and in 2002 they almost ousted him. Webb County in particular, with a 94% Latino population, spurred the incumbent’s near defeat with dramatically increased turnout in 2002. See 2004 Almanac 1579. In response to the growing participation that threatened Bonilla’s incumbency, the State divided the cohesive Latino community in Webb County, moving about 100,000 Latinos to District 28, which was already a Latino opportunity district, and leaving the rest in a district where they now have little hope of electing their candidate of choice. The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive. Cf. De Grandy, supra, at 1014 (finding no §2 violation where “the State’s scheme would thwart the historical tendency to exclude Hispanics, not encourage or perpetuate it”); White v. Regester, 412 U. S. 755, 769 (1973) (looking in the totality of the circumstances to whether the proposed districting would “remedy the effects of past and present discrimination against Mexican-Americans, and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities” (citation and internal quotation marks omitted)). The District Court recognized “the long history of discrimination against Latinos and Blacks in Texas,” Session, 298 F. Supp. 2d, at 473, and other courts have elaborated on this history with respect to electoral processes: “Texas has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process. Devices such as the poll tax, an all-white primary system, and restrictive voter registration time periods are an unfortunate part of this State’s minority voting rights history. The history of official discrimination in the Texas election process—stretching back to Reconstruction—led to the inclusion of the State as a covered jurisdiction under Section 5 in the 1975 amendments to the Voting Rights Act. Since Texas became a covered jurisdiction, the Department of Justice has frequently interposed objections against the State and its subdivisions.” Vera v. Richards, 861 F. Supp. 1304, 1317 (SD Tex. 1994) (citations omitted). See also Vera, 517 U. S., at 981–982; Regester, supra, at 767–769. In addition, the “political, social, and economic legacy of past discrimination” for Latinos in Texas, Session, supra, at 492, may well “hinder their ability to participate effectively in the political process,” Gingles, 478 U. S., at 45 (citing Senate Report factors). Against this background, the Latinos’ diminishing electoral support for Bonilla indicates their belief he was “unresponsive to the particularized needs of the members of the minority group.” Ibid. (same). In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination that could give rise to an equal protection violation. Even if we accept the District Court’s finding that the State’s action was taken primarily for political, not racial, reasons, Session, supra, at 508, the redrawing of the district lines was damaging to the Latinos in District 23. The State not only made fruitless the Latinos’ mobilization efforts but also acted against those Latinos who were becoming most politically active, dividing them with a district line through the middle of Laredo. Furthermore, the reason for taking Latinos out of District 23, according to the District Court, was to protect Congressman Bonilla from a constituency that was increasingly voting against him. The Court has noted that incumbency protection can be a legitimate factor in districting, see Karcher v. Daggett, 462 U. S., at 740, but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents. If the justification for incumbency protection is to keep the constituency intact so the officeholder is accountable for promises made or broken, then the protection seems to accord with concern for the voters. If, on the other hand, incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters. By purposely redrawing lines around those who opposed Bonilla, the state legislature took the latter course. This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters. See Gingles, supra, at 45 (citing Senate Report factor of whether “the policy underlying” the State’s action “is tenuous”). The policy becomes even more suspect when considered in light of evidence suggesting that the State intentionally drew District 23 to have a nominal Latino voting-age majority (without a citizen voting-age majority) for political reasons. Session, supra, at 497. This use of race to create the façade of a Latino district also weighs in favor of appellants’ claim. Contrary to The Chief Justice’s suggestion that we are reducing the State’s needed flexibility in complying with §2, see post, at 15–16, the problem here is entirely of the State’s own making. The State chose to break apart a Latino opportunity district to protect the incumbent congressman from the growing dissatisfaction of the cohesive and politically active Latino community in the district. The State then purported to compensate for this harm by creating an entirely new district that combined two groups of Latinos, hundreds of miles apart, that represent different communities of interest. Under §2, the State must be held accountable for the effect of these choices in denying equal opportunity to Latino voters. Notwithstanding these facts, The Chief Justice places great emphasis on the District Court’s statement that “new District 25 is ‘a more effective Latino opportunity district than Congressional District 23 had been.’ ” Post, at 2–3 (quoting Session, 298 F. Supp. 2d, at 503). Even assuming this statement, expressed in the context of summarizing witnesses’ testimony, qualifies as a finding of the District Court, two points make it of minimal relevance. First, as previously noted, the District Court measured the effectiveness of District 25 without accounting for the detrimental consequences of its compactness problems. Second, the District Court referred only to how effective District 23 “had been,” not to how it would operate today, a significant distinction given the growing Latino political power in the district. Based on the foregoing, the totality of the circumstances demonstrates a §2 violation. Even assuming Plan 1374C provides something close to proportional representation for Latinos, its troubling blend of politics and race—and the resulting vote dilution of a group that was beginning to achieve §2’s goal of overcoming prior electoral discrimination—cannot be sustained. D Because we hold Plan 1374C violates §2 in its redrawing of District 23, we do not address appellants’ claims that the use of race and politics in drawing that district violates the First Amendment and equal protection. We also need not confront appellants’ claim of an equal protection violation in the drawing of District 25. The districts in south and west Texas will have to be redrawn to remedy the violation in District 23, and we have no cause to pass on the legitimacy of a district that must be changed. See Session, supra, at 528 (Ward, J., concurring in part and dissenting in part). District 25, in particular, was formed to compensate for the loss of District 23 as a Latino opportunity district, and there is no reason to believe District 25 will remain in its current form once District 23 is brought into compliance with §2. We therefore vacate the District Court’s judgment as to these claims. IV Appellants also challenge the changes to district lines in the Dallas area, alleging they dilute African-American voting strength in violation of §2 of the Voting Rights Act. Specifically, appellants contend that an African-American minority effectively controlled District 24 under Plan 1151C, and that §2 entitles them to this district. Before Plan 1374C was enacted, District 24 had elected Anglo Democrat Martin Frost to Congress in every election since 1978. Session, supra, at 481–482. Anglos were the largest racial group in the district, with 49.8% of the citizen voting-age population, and third largest were Latinos, with 20.8%. State’s Exh. 57, App. 339. African-Americans were the second-largest group, with 25.7% of the citizen voting-age population, ibid., and they voted consistently for Frost. The new plan broke apart this racially diverse district, assigning its pieces into several other districts. Accepting that African-Americans would not be a majority of the single-member district they seek, and that African-Americans do not vote cohesively with Hispanics, Session, supra, at 484, appellants nonetheless contend African-Americans had effective control of District 24. As the Court has done several times before, we assume for purposes of this litigation that it is possible to state a §2 claim for a racial group that makes up less than 50% of the population. See De Grandy, 512 U. S., at 1009; Voinovich v. Quilter, 507 U. S. 146, 154 (1993); Gingles, 478 U. S., at 46–47, n. 12. Even on the assumption that the first Gingles prong can accommodate this claim, however, appellants must show they constitute “a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes.” Voinovich, supra, at 158 (emphasis omitted). The relatively small African-American population can meet this standard, according to appellants, because they constituted 64% of the voters in the Democratic primary. Since a significant number of Anglos and Latinos voted for the Democrat in the general election, the argument goes, African-American control of the primary translated into effective control of the entire election. The District Court found, however, that African-Americans could not elect their candidate of choice in the primary. In support of this finding, it relied on testimony that the district was drawn for an Anglo Democrat, the fact that Frost had no opposition in any of his primary elections since his incumbency began, and District 24’s demographic similarity to another district where an African-American candidate failed when he ran against an Anglo. Session, 298 F. Supp. 2d, at 483–484. “In short, that Anglo Democrats control this district is,” according to the District Court, “the most rational conclusion.” Id., at 484. Appellants fail to demonstrate clear error in this finding. In the absence of any contested Democratic primary in District 24 over the last 20 years, no obvious benchmark exists for deciding whether African-Americans could elect their candidate of choice. The fact that African-Americans voted for Frost—in the primary and general elections—could signify he is their candidate of choice. Without a contested primary, however, it could also be interpreted to show (assuming racial bloc voting) that Anglos and Latinos would vote in the Democratic primary in greater numbers if an African-American candidate of choice were to run, especially given Texas’ open primary system. The District Court heard trial testimony that would support both explanations, and we cannot say that it erred in crediting the testimony that endorsed the latter interpretation. Compare App. 242–243 (testimony of Tarrant County Precinct Administrator that Frost is the “favored candidate of the African-American community” and that he has gone unopposed in primary challenges because he “serves [the African-American community’s] interests”), with id., at 262–264 (testimony of Congresswoman Eddie Bernice Johnson that District 24 was drawn for an Anglo Democrat (Martin Frost, in particular) in 1991 by splitting a minority community), and id., at 277–280 (testimony of State Representative Ron Wilson that African-Americans did not have the ability to elect their preferred candidate, particularly an African-American candidate, in District 24 and that Anglo Democrats in such “influence [d]istricts” were not fully responsive to the needs of the African-American community). The analysis submitted by appellants’ own expert was also inconsistent. Of the three elections for statewide office he examined, in District 24 the African-American candidate of choice would have won one, lost one, and in the third the African-American vote was split. See Lichtman Report, id., at 75–76, 92–96; State’s Exh. 20 in Civ. Action No. 2:03–CV–354 (ED Tex.), p. 138; State’s Exh. 21 in Civ. Action No. 2:03–CV–354 (ED Tex.). The District Court committed no clear error in rejecting this questionable showing that African-Americans have the ability to elect their candidate of choice in favor of other evidence that an African-American candidate of choice would not prevail. See Anderson v. Bessemer City, 470 U. S. 564, 574 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”). That African-Americans had influence in the district, Session, supra, at 485, does not suffice to state a §2 claim in these cases. The opportunity “to elect representatives of their choice,” 42 U. S. C. §1973(b), requires more than the ability to influence the outcome between some candidates, none of whom is their candidate of choice. There is no doubt African-Americans preferred Martin Frost to the Republicans who opposed him. The fact that African-Americans preferred Frost to some others does not, however, make him their candidate of choice. Accordingly, the ability to aid in Frost’s election does not make the old District 24 an African-American opportunity district for purposes of §2. If §2 were interpreted to protect this kind of influence, it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions. See Georgia v. Ashcroft, 539 U. S., at 491 (Kennedy, J., concurring). Appellants respond by pointing to Georgia v. Ashcroft, where the Court held that the presence of influence districts is a relevant consideration under §5 of the Voting Rights Act. The inquiry under §2, however, concerns the opportunity “to elect representatives of their choice,” 42 U. S. C. §1973(b), not whether a change has the purpose or effect of “denying or abridging the right to vote,” §1973c. Ashcroft recognized the differences between these tests, 539 U. S., at 478, and concluded that the ability of racial groups to elect candidates of their choice is only one factor under §5, id., at 480. So while the presence of districts “where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process” is relevant to the §5 analysis, id., at 482, the lack of such districts cannot establish a §2 violation. The failure to create an influence district in these cases thus does not run afoul of §2 of the Voting Rights Act. Appellants do not raise a district-specific political gerrymandering claim against District 24. Even if the claim were cognizable as part of appellants’ statewide challenge, it would be unpersuasive. Just as for the statewide claim, appellants would lack any reliable measure of partisan fairness. Justice Stevens suggests the burden on representational rights can be measured by comparing the success of Democrats in old District 24 with their success in the new districts they now occupy. Post, at 31–32 (opinion concurring in part and dissenting in part). There is no reason, however, why the old district has any special claim to fairness. In fact, old District 24, no less than the old redistricting plan as a whole, was formed for partisan reasons. See Session, 298 F. Supp. 2d, at 484; see also Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex., Nov. 14, 2001) (per curiam), summarily aff’d, 536 U. S. 919 (2002), App. E to Juris. Statement in No. 05–276, p. 208a. Furthermore, Justice Stevens’ conclusion that the State has not complied with §5 of the Voting Rights Act, post, at 33–37—effectively overruling the Attorney General without briefing, argument, or a lower court opinion on the issue—does not solve the problem of determining a reliable measure of impermissible partisan effect. * * * We reject the statewide challenge to Texas’ redistricting as an unconstitutional political gerrymander and the challenge to the redistricting in the Dallas area as a violation of §2 of the Voting Rights Act. We do hold that the redrawing of lines in District 23 violates §2 of the Voting Rights Act. The judgment of the District Court is affirmed in part, reversed in part, and vacated in part, and the cases are remanded for further proceedings. It is so ordered.
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546.US.81
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Title 28 U. S. C. §1441 authorizes the removal of civil actions from state court to federal court when the state-court action is one that could have been brought, originally, in federal court. When federal-court jurisdiction is predicated on the parties’ diversity of citizenship, see §1332, removal is permissible “only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which [the] action [was] brought.” §1441(b). Christophe and Juanita Roche, plaintiffs below, respondents here, leased an apartment in a Virginia complex, Westfield Village, managed by Lincoln Property Company (Lincoln). The Roches commenced suit in state court against diverse defendants, including Lincoln, asserting serious medical ailments from their exposure to toxic mold in their apartment, and alleging loss, theft, or destruction of personal property left in the care of Lincoln and the mold treatment firm during the remediation process. The Roches identified themselves as Virginia citizens and defendant Lincoln as a Texas corporation. Defendants removed the litigation to a Federal District Court, invoking that court’s diversity-of-citizenship jurisdiction. In their consolidated federal-court complaint, the Roches identified themselves and Lincoln just as they did in their state-court complaints. Lincoln, in its answer, admitted that it managed Westfield Village, and did not seek to avoid liability by asserting that some other entity was responsible for managing the property. After discovery, the District Court granted defendants’ motion for summary judgment, but before judgment was entered, the Roches moved to remand the case to state court. The District Court denied the motion, but the Fourth Circuit reversed, holding the removal improper on the ground that Lincoln failed to show the nonexistence of an affiliated Virginia entity that was a real party in interest. Held: Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State. It is not incumbent on the named defendants to negate the existence of a potential defendant whose presence in the action would destroy diversity. Pp. 6–13. (a) The Fourth Circuit correctly identified Lincoln as a proper party, but erred in insisting that some other entity affiliated with Lincoln should have been joined as a codefendant, and that it was Lincoln’s obligation to name that entity and show that its joinder would not destroy diversity. This Court stresses, first, that the existence of complete diversity between the Roches and Lincoln is plain and no longer subject to debate. The Court turns next to the reasons why the Fourth Circuit erred in determining that diversity jurisdiction was not proved by the removing parties. Since Strawbridge v. Curtiss, 3 Cranch 267, this Court has read the statutory formulation “between … citizens of different States,” 28 U. S. C. §1332(a)(1), to require complete diversity between all plaintiffs and all defendants. While §1332 allows plaintiffs to invoke diversity jurisdiction, §1441 gives defendants a corresponding opportunity. The scales are not evenly balanced, however. An in-state plaintiff may invoke diversity jurisdiction, but §1441(b) bars removal on the basis of diversity if any “part[y] in interest properly joined and served as [a] defendan[t] is a citizen of the State in which [the] action is brought.” In this case, Virginia plaintiffs joined and served no Virginian as a party defendant. Hence, the action qualified for the removal defendants effected. Neither Federal Rule of Civil Procedure 17(a), captioned “Real Party in Interest,” nor Rule 19, captioned “Joinder of Persons Needed for Just Adjudication,” requires plaintiffs or defendants to name and join any additional parties to this action. Both Rules address party joinder, not federal-court subject-matter jurisdiction. The Fourth Circuit and the Roches draw from this Court’s decisions a jurisdictional “real parties to the controversy” rule applicable in diversity cases to complaining and defending parties alike. But the Court is aware of no decision supporting the burden the Fourth Circuit placed on a properly joined defendant to negate the existence of a potential codefendant whose presence in the action would destroy diversity. Pp. 6–9. (b) This Court’s decisions employing “real party to the controversy” terminology bear scant resemblance to the Roches’ action. No party here has been “improperly or collusively” named solely to create federal jurisdiction, see, e.g., 28 U. S. C. §1359, Kramer v. Caribbean Mills, Inc., 394 U. S. 823, 830. Nor are cases in which actions against a state agency have been regarded as suits against the State itself, see State Highway Comm’n of Wyo. v. Utah Constr. Co., 278 U. S. 194, 199–200, relevant to suits between private parties. Unlike cases in which a party was named to satisfy state pleading rules, e.g., McNutt ex rel. Leggett, Smith, & Lawrence v. Bland, 2 How. 9, 14, or was joined only as designated performer of a ministerial act, e.g., Walden v. Skinner, 101 U. S. 577, 589, or otherwise had no control of, impact, or stake in the controversy, e.g., Wood v. Davis, 18 How. 467, 469–470, Lincoln has a vital interest in this case. Indeed, Lincoln accepted responsibility, in the event the Roches prevailed on the merits, by admitting that it managed Westfield Village. In any event, the Fourth Circuit had no warrant in this case to inquire whether some other person might have been joined as an additional or substitute defendant. Congress, empowered to prescribe the jurisdiction of the federal courts, sometimes has specified that a named party’s own citizenship does not determine its diverse status. But Congress has not directed that a corporation, for diversity purposes, shall be deemed to have acquired the citizenship of all or any of its affiliates. For cases like the Roches’, Congress has provided simply and only that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business,” §1332(c)(1). The jurisdictional rule governing here is unambiguous and not amenable to judicial enlargement. Under §1332(c)(1), Lincoln is a citizen of Texas alone, and under §1441(a) and (b), this case was properly removed. Pp. 9–13. 373 F. 3d 610, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.
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This case concerns 28 U. S. C. §1441, which authorizes the removal of civil actions from state court to federal court when the action initiated in state court is one that could have been brought, originally, in a federal district court. §1441(a). When federal-court jurisdiction is predicated on the parties’ diversity of citizenship, see §1332, removal is permissible “only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which [the] action [was] brought.” §1441(b). Christophe and Juanita Roche, plaintiffs below, respondents here, are citizens of Virginia. They commenced suit in state court against diverse defendants, including Lincoln Property Company (Lincoln), a corporation chartered and having its principal place of business in Texas. The defendants removed the litigation to a Federal District Court where, after discovery proceedings, they successfully moved for summary judgment. Holding the removal improper, the Court of Appeals instructed remand of the action to state court. 373 F. 3d 610, 620–622 (CA4 2004). The appellate court so ruled on the ground that the Texas defendant failed to show the nonexistence of an affiliated Virginia entity that was the “real party in interest.” Id., at 622. We reverse the judgment of the Court of Appeals. Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State. It is not incumbent on the named defendants to negate the existence of a potential defendant whose presence in the action would destroy diversity.[Footnote 1] I Christophe and Juanita Roche leased an apartment in the Westfield Village complex in Fairfax County, Virginia. About a year after moving in, they discovered evidence of toxic mold in their apartment. Expert inspection confirmed the presence of mold, which the inspection report linked to hair loss, headaches, irritation of the respiratory tract, fatigue, and dermatitis. App. 184–190. The report stated that spores from toxigenic mold species were airborne in the apartment and had likely contaminated the carpeting and fabric surfaces throughout the dwelling. Id., at 188. The Roches moved out of their apartment for the remediation process, leaving their personal belongings in the care of Lincoln, the designated property manager of Westfield Village, and the mold treatment firm. 373 F. 3d, at 612. Some months later, the Roches commenced suit, filing two substantially similar complaints in the Circuit Court for Fairfax County, Virginia. App. 27–50, 53–75. Both complaints asserted serious medical ailments from the Roches’ year-long exposure to toxic mold, and sought damages under multiple headings, including negligence, breach of contract, actual fraud, constructive fraud, and violations of Virginia housing regulations. Id., at 38–48, 64–74. In addition, the Roches alleged loss, theft, or destruction of their personal property (including irreplaceable family keepsakes) during the remediation process. Regarding these losses, they sought damages for conversion and infliction of emotional distress. Id., at 49–50, 74–75. In state court, the Roches’ complaints named three defendants: Lincoln; INVESCO Institutional, an investment management group; and State of Wisconsin Investment Board, the alleged owner of Westfield Village. Id., at 26–28, 52–54. The complaints described Lincoln as “a developer and manager of residential communities, including … Westfield Village.” Id., at 27, 53. “[A]cting by and through [its] agents,” the Roches alleged, Lincoln caused the personal injuries of which they complained. Id., at 30, 56. Defendants timely removed the twin cases to the United States District Court for the Eastern District of Virginia, invoking that court’s diversity-of-citizenship jurisdiction. See 28 U. S. C. §§1332(a)(1), 1441(a). The notice of removal described Lincoln as a Texas corporation with its principal place of business in Texas, INVESCO as a Delaware corporation with its principal place of business in Georgia, and State of Wisconsin Investment Board as an independent agency of Wisconsin. App. 81. In their consolidated federal-court complaint, the Roches identified themselves as citizens of Virginia and Lincoln as a corporation headquartered in Texas, just as they did in their state-court complaints. Id., at 27, 53, 114–115.[Footnote 2] Further, they stated affirmatively that the federal court “has jurisdiction of this matter.” Id., at 114. Lincoln, in its answer to the complaint, admitted that, through its regional offices, “it manages Westfield Village.” Id., at 137, 138. Lincoln did not seek to avoid liability by asserting that some other entity was responsible for managing the property. In both their state- and federal-court complaints, the Roches stated that, “[u]pon further discovery in the case,” they would “determine if additional defendant or defendants will be named.” Id., at 28, 54, 116. Although they engaged in some discovery concerning Lincoln’s affiliates, their efforts in this regard were not extensive, Tr. of Oral Arg. 9, 14, 38–39, 48–49, 53, and at no point did they seek to join any additional defendant. After discovery, the parties cross-moved for summary judgment. The District Court granted defendants’ motion and denied plaintiffs’ motion, noting that it would set forth its reasons in a forthcoming memorandum order. App. to Pet. for Cert. 20a–21a. The promised memorandum order issued a few months later, id., at 22a–40a, and the District Court entered final judgment for the defendants the same day, id., at 41a. Six days after the District Court granted defendants’ motion for summary judgment, but before final judgment was entered, the Roches moved to remand the case to the state court, alleging for the first time the absence of federal subject-matter jurisdiction.[Footnote 3] Specifically, the Roches alleged that Lincoln “is not a Texas Corporation, but a Partnership with one of its partners residing in the Commonwealth of Virginia.” App. 226.[Footnote 4] The District Court denied the remand motion, concluding that Lincoln is a Texas corporation and that removal was proper because the requisite complete diversity existed between all plaintiffs and all defendants. App. to Pet. for Cert. 84a–93a. The Court of Appeals for the Fourth Circuit reversed and instructed the District Court to remand the case to the state court. 373 F. 3d, at 622. Although recognizing that Lincoln is a Texas citizen and a proper party to the action, id., at 620–621, the Court of Appeals observed that “Lincoln operates under many different structures,” id., at 617. Describing Lincoln as “the nominal party and ultimate parent company,” the appellate court suspected that an unidentified “Virginia subsidiary, be it a partnership, corporation or otherwise, rather than the Texas parent” was “the real and substantial party in interest.” Id., at 620–621. Lincoln, the party invoking federal-court jurisdiction, had not demonstrated the nonexistence of “the Virginia sub-‘partnership,’ ” the Court of Appeals reasoned, id., at 621, and therefore had not met its burden of establishing diversity, id., at 621–622. We granted certiorari, 543 U. S. 1186 (2005), to resolve a division among the Circuits on the question whether an entity not named or joined as a defendant can nonetheless be deemed a real party in interest whose presence would destroy diversity. Compare 373 F. 3d, at 620–622, with Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F. 2d 250, 252 (CA5 1973) (“The citizenship of one who has an interest in the lawsuit but who has not been made a party … by plaintiff cannot be used by plaintiff on a motion to remand to defeat diversity jurisdiction.”), and Simpson v. Providence Washington Ins. Group, 608 F. 2d 1171, 1173–1175 (CA9 1979) (Kennedy, J.) (upholding removal where Alaska plaintiff sued Rhode Island parent company without joining as well potentially liable Alaska subsidiary, and the parties did not act collusively to create diversity jurisdiction). II The Court of Appeals correctly identified Lincoln as a proper party to the action, but it erred in insisting that some other entity affiliated with Lincoln should have been joined as a codefendant, and that it was Lincoln’s obligation to name that entity and show that its joinder would not destroy diversity. We stress, first, that, at this stage of the case, the existence of complete diversity between the Roches and Lincoln is not in doubt. The Roches, both citizens of Virginia, acknowledge that Lincoln is indeed a corporation, not a partnership, and that Lincoln is chartered in and has its principal place of business in Texas. Tr. of Oral Arg. 40–41; see App. 114 (“Upon information and belief, Lincoln Property Company is a corporation with corporate headquarters [in] Texas.”); 373 F. 3d, at 620. Accordingly, for jurisdictional purposes, Lincoln is a citizen of Texas and of no other State. 28 U. S. C. §1332(c)(1) (“a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business”). We turn now to the reasons why the Fourth Circuit erred in determining that diversity jurisdiction was not proved by the removing parties. 373 F. 3d, at 612 (concluding that “Defendants failed to carry their burden of proof with respect to their allegedly diverse citizenship”). The principal federal statute governing diversity jurisdiction, 28 U. S. C. §1332, gives federal district courts original jurisdiction of all civil actions “between … citizens of different States” where the amount in controversy exceeds $75,000. §1332(a)(1).[Footnote 5] Since Strawbridge v. Curtiss, 3 Cranch 267 (1806), we have read the statutory formulation “between . . . citizens of different States” to require complete diversity between all plaintiffs and all defendants. Caterpillar Inc. v. Lewis, 519 U. S. 61, 68 (1996); cf. State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 530–531 (1967) (explaining that complete diversity is not constitutionally required and upholding interpleader under §1335 based on minimal diversity, i.e., diversity between two or more adverse parties). While §1332 allows plaintiffs to invoke the federal courts’ diversity jurisdiction, §1441 gives defendants a corresponding opportunity. Section 1441(a) states: “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” The scales are not evenly balanced, however. An in-state plaintiff may invoke diversity jurisdiction, but §1441(b) bars removal on the basis of diversity if any “part[y] in interest properly joined and served as [a] defendan[t] is a citizen of the State in which [the] action is brought.”[Footnote 6] In the instant case, Virginia plaintiffs Christophe and Juanita Roche joined and served no Virginian as a party defendant. Hence the action qualified for the removal defendants effected. Neither Federal Rule of Civil Procedure 17(a), captioned “Real Party in Interest,” nor Federal Rule 19, captioned “Joinder of Persons Needed for Just Adjudication,” requires plaintiffs or defendants to name and join any additional parties to this action. Both Rules, we note, address party joinder, not federal-court subject-matter jurisdiction. See Rule 82 (“[The Federal Rules of Civil Procedure] shall not be construed to extend or limit the jurisdiction of the United States district courts … .”); Advisory Committee’s Notes on Fed. Rule Civ. Proc. 19, 28 U. S. C. App., pp. 696–698. Rule 17(a) directs that “[e]very action shall be prosecuted in the name of the real party in interest.” (Emphasis added.) That Rule, as its text displays, speaks to joinder of plaintiffs, not defendants. Rule 19 provides for the joinder of parties who should or must take part in the litigation to achieve a “[j]ust [a]djudication.” See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102, 118–123 (1968). The Roches place no reliance on Rule 19 and maintain that the Rule “played no part, explicitly or implicitly, in the Court of Appeals’ conclusion.” Brief for Respondents 36. Given Lincoln’s admission that it managed Westfield Village when mold contaminated the Roches’ apartment, see supra, at 4, 7, it does indeed appear that no absent person, formally or practically, was “[n]eeded for [j]ust [a]djudication.” Fed. Rule Civ. Proc. 19; cf. Simpson, 608 F. 2d, at 1174 (diverse corporate defendant accepted full liability for any eventual adverse judgment; nondiverse subsidiary need not be joined as a defendant, although arguably it had joint liability with its parent); 16 J. Moore et al., Moore’s Federal Practice §107.14[2][c], p. 107–67 (3d ed. 2005) (“In general, the plaintiff is the master of the complaint and has the option of naming only those parties the plaintiff chooses to sue, subject only to the rules of joinder [of] necessary parties.”). While Rule 17(a) applies only to joinder of parties who assert claims, the Court of Appeals and the Roches draw from decisions of this Court a jurisdictional “real parties to the controversy” rule applicable in diversity cases to complaining and defending parties alike. See Navarro Savings Assn. v. Lee, 446 U. S. 458, 462, n. 9 (1980) (citing Note, Diversity Jurisdiction over Unincorporated Business Entities: The Real Party in Interest as a Jurisdictional Rule, 56 Texas L. Rev. 243, 247–250 (1978)). But no decision called to our attention supports the burden the Court of Appeals placed on a properly joined defendant to negate the existence of a potential codefendant whose presence in the action would destroy diversity. III Our decisions employing “real party to the controversy” terminology in describing or explaining who counts and who can be discounted for diversity purposes bear scant resemblance to the action the Roches have commenced. No party here has been “improperly or collusively” named solely to create federal jurisdiction, see 28 U. S. C. §1359 (“A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”); Kramer v. Caribbean Mills, Inc., 394 U. S. 823, 830 (1969) (assignment for collection only, motivated by desire to make diversity jurisdiction available, falls within the “very core” of §1359); Little v. Giles, 118 U. S. 596, 600–607 (1886) (where land was purportedly sold to out-of-state farmer but no money or deed changed hands, quiet title action could not be maintained based on farmer’s diverse citizenship), nor to defeat it, see Cheaspeake & Ohio R. Co. v. Cockrell, 232 U. S. 146, 152 (1914) (diverse defendants, upon showing that joinder of nondiverse party was “without right and made in bad faith,” may successfully remove the action to federal court). Nor are the Roches aided by cases in which actions against a state agency have been regarded as suits against the State itself. See, e.g., State Highway Comm’n of Wyo. v. Utah Constr. Co., 278 U. S. 194, 199–200 (1929) (“[State] Commission was but the arm or alter ego of the State with no funds or ability to respond in damages.”). Decisions of this genre are bottomed on this Court’s recognition of a State’s asserted Eleventh Amendment right not to be haled into federal court. See, e.g., Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 769 (2002).[Footnote 7] They are not pertinent to suits between private parties. Unlike cases in which a party was named to satisfy state pleading rules, e.g., McNutt ex rel. Leggett, Smith, & Lawrence v. Bland, 2 How. 9, 14 (1844), or was joined only as designated performer of a ministerial act, e.g., Walden v. Skinner, 101 U. S. 577, 589 (1880), or otherwise had no control of, impact on, or stake in the controversy, e.g., Wood v. Davis, 18 How. 467, 469–470 (1856), Lincoln has a vital interest in this case.[Footnote 8] Indeed, Lincoln accepted responsibility, in the event that the Roches prevailed on the merits of their claims, by admitting that, “[since 1996,] it has managed Westfield Village Apartments.” App. 137. A named defendant who admits involvement in the controversy and would be liable to pay a resulting judgment is not “nominal” in any sense except that it is named in the complaint. Cf. Knapp v. Railroad Co., 20 Wall. 117, 122 (1874). In any event, we emphasize, the Fourth Circuit had no warrant in this case to inquire whether some other person might have been joined as an additional or substitute defendant. See id., at 122 (federal courts should not “inquir[e] outside of the case in order to ascertain whether some other person may not have an equitable interest in the cause of action”); Little, 118 U. S., at 603 (if named party’s interest is real, the fact that other interested parties are not joined “will not affect the jurisdiction of the [federal courts]”); 16 Moore, supra, §107.14[2][c], p. 107–67 (“Ordinarily, a court will not interfere with the consequences of a plaintiff's selection in naming parties, unless the plaintiff has impermissibly manufactured diversity or used an unacceptable device to defeat diversity.”). Congress, empowered to prescribe the jurisdiction of the federal courts, sometimes has specified that a named party’s own citizenship does not determine its diverse status. Thus, as a procedural matter, executors, administrators, and guardians “may sue in [their] own name[s] without joining the party for whose benefit the action is brought.” Rule 17(a). As to diversity jurisdiction, however, §1332(c)(2) directs that “the legal representative of [a decedent’s] estate … shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.” Congress has also provided that in direct action suits against insurers to which the insured is not made a party, the “insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.” §1332(c)(1). But Congress surely has not directed that a corporation, for diversity-of-citizenship purposes, shall be deemed to have acquired the citizenship of all or any of its affiliates. For cases of the kind the Roches have instituted, Congress has provided simply and only this instruction: “[A] corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” Ibid. The jurisdictional rule governing here is unambiguous and it is not amenable to judicial enlargement. Under §1332(c)(1), Lincoln is a citizen of Texas alone, and under §1441(a) and (b), this case was properly removed. * * * The Roches sued the entity they thought responsible for managing their apartment. Lincoln affirmed that it was so responsible. Complete diversity existed. The potential liability of other parties was a matter plaintiffs’ counsel might have assiduously explored through discovery devices. It was not incumbent on Lincoln to propose as additional defendants persons the Roches, as masters of their complaint, permissively might have joined. For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Defendants below, petitioners here, presented a second question in their petition for certiorari: Can a limited partnership be deemed a citizen of a State on the sole ground that the partnership’s business activities bear a “very close nexus” with the State? Because no partnership is or need be a party to this action, that question is not live for adjudication. We note, however, that our prior decisions do not regard as relevant to subject-matter jurisdiction the locations at which partnerships conduct business. See Carden v. Arkoma Associates, 494 U. S. 185, 189, 192–197 (1990) (for diversity purposes, a partnership entity, unlike a corporation, does not rank as a citizen; to meet the complete diversity requirement, all partners, limited as well as general, must be diverse from all parties on the opposing side). Footnote 2 Some weeks after the removal, the District Court dismissed INVESCO as a defendant. App. 112. Nothing turns on the presence or absence of INVESCO as a defending party. State of Wisconsin Investment Board, alleged owner of Westfield Village, remains a defendant-petitioner. Its status as a Wisconsin citizen for diversity purposes is not currently contested. Footnote 3 The Roches state that they preferred to litigate in state court for two principal reasons: Virginia does not permit summary judgment based on affidavits or deposition testimony, and Virginia has not adopted the rule of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), to assess expert evidence. Brief for Respondents 3, and n. 1. Footnote 4 Confusion about Lincoln’s structure is understandable. Real estate businesses typically operate through a web of affiliated entities, see Brief for Real Estate Roundtable et al. as Amici Curiae 6–13, and certain Lincoln-affiliated responders to the Roches’ discovery inquiries stated that Lincoln was a partnership, e.g., App. 175, 176, 179. In response to the Roches’ motion to remand, Lincoln proffered its 1979 Texas incorporation papers and an affidavit attesting to its status as a Texas corporation. Id., at 238–246. That matter is no longer debated; at oral argument, counsel for the Roches acknowledged that Lincoln is a Texas corporation. Tr. of Oral Arg. 40–41. Footnote 5 The Roches sought damages well in excess of the jurisdictional minimum. App. 40–50, 66–75, 131–134. Footnote 6 Although we have not addressed the issue, several lower courts have held that the presence of a diverse but in-state defendant in a removed action is a “procedural” defect, not a “jurisdictional” bar, and that the defect is waived if not timely raised by the plaintiff. See 14C C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3739, pp. 451–457, and nn. 32–37 (3d ed. 1998). Footnote 7 Similarly inapposite are cases invoking our original jurisdiction in which we have inquired into the capacity in which a sovereign party appears. See, e.g., Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387, 395–396 (1938) (original jurisdiction improper where State was acting as trustee for its citizens); United States Fidelity & Guaranty Co. v. United States ex rel. Kenyon, 204 U. S. 349, 358 (1907) (original jurisdiction upheld where United States was “a real and not a mere nominal plaintiff”). Footnote 8 The Roches’ complaints cast Lincoln as the primary tortfeasor, alleging that Lincoln engaged in “a conscious and predetermined plan” to conceal the hazards of mold from apartment residents. App. 34, 60. Further, the Roches alleged that Lincoln ignored numerous mold-related maintenance requests they “personally” made to Lincoln, id., at 29, 55, inquiries that, if followed up, might have prevented or lessened their injuries.
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546.US.142
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In 2002, the Government began withholding a portion of petitioner’s Social Security payments to offset his debt on federally reinsured student loans that were more than 10 years overdue. Petitioner sued, arguing that the offset was barred by the 10-year statute of limitations of the Debt Collection Act of 1982, 31 U. S. C. §3716(e)(1). The Social Security Act generally exempts benefits from attachment or other legal process, 42 U. S. C. §407(a), and provides that “[n]o other provision of law … may be construed to … modify … this section except to the extent that it does so by express reference,” §407(b). The Higher Education Technical Amendments of 1991 eliminated time limitations on suits to collect student loans, 20 U. S. C. §1091a(a)(2)(D). In 1996, the Debt Collection Improvement Act subjected Social Security benefits to offset, “[n]otwithstanding [§407],” 31 U. S. C. §3716(c)(3)(A)(i). The District Court dismissed petitioner’s complaint, and the Ninth Circuit affirmed. Held: The United States may offset Social Security benefits to collect a student loan debt that has been outstanding for over 10 years. Pp. 3–5. (a) The Debt Collection Improvement Act makes Social Security benefits subject to offset, providing the sort of express reference that §407(b) says is necessary to supersede the anti-attachment provision. P. 3. (b) The Higher Education Technical Amendments remove the 10-year limit that would otherwise bar offsetting petitioner’s Social Security benefits to pay off his student loan debt. Debt collection by Social Security offset was not authorized until five years after this abrogation of time limits, but the plain meaning of the Higher Education Technical Amendments must be given effect even though Congress may not have foreseen all of its consequences, Union Bank v. Wolas, 502 U. S. 151, 158. Though the Higher Education Technical Amendments, unlike the Debt Collection Improvement Act, do not explicitly mention §407, an express reference is only required to authorize attachment in the first place. Pp. 3–4. (c) Though the Debt Collection Improvement Act retained the Debt Collection Act’s general 10-year bar on offset authority, the Higher Education Technical Amendments retain their effect as a limited exception to the Debt Collection Act time bar in the student loan context. The Court declines to read any meaning into a failed 2004 congressional effort to amend the latter Act to explicitly authorize offset of debts over 10 years old. See, e.g., United States v. Craft, 535 U. S. 274, 287. Pp. 4–5. 376 F. 3d 1027, affirmed. O’Connor, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion.
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We consider whether the United States may offset Social Security benefits to collect a student loan debt that has been outstanding for over 10 years. I A Petitioner James Lockhart failed to repay federally reinsured student loans that he had incurred between 1984 and 1989 under the Guaranteed Student Loan Program. These loans were eventually reassigned to the Department of Education, which certified the debt to the Department of the Treasury through the Treasury Offset Program. In 2002, the Government began withholding a portion of petitioner’s Social Security payments to offset his debt, some of which was more than 10 years delinquent. Petitioner sued in Federal District Court, alleging that under the Debt Collection Act’s 10-year statute of limitations, the offset was time barred. The District Court dismissed the complaint, and the Court of Appeals for the Ninth Circuit affirmed. 376 F. 3d 1027 (2004). We granted certiorari, 544 U. S. ___ (2005), to resolve the conflict between the Ninth Circuit and the Eighth Circuit, see Lee v. Paige, 376 F. 3d 1179 (CA8 2004), and now affirm. B The Debt Collection Act of 1982, as amended, provides that, after pursuing the debt collection channels set out in 31 U. S. C. §3711(a), an agency head can collect an outstanding debt “by administrative offset.” §3716(a). The availability of offsets against Social Security benefits is limited, as the Social Security Act, 49 Stat. 620, as amended, makes Social Security benefits, in general, not “subject to execution, levy, attachment, garnishment, or other legal process.” 42 U. S. C. §407(a). The Social Security Act purports to protect this anti-attachment rule with an express-reference provision: “No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.” §407(b). Moreover, the Debt Collection Act’s offset provisions generally do not authorize the collection of claims which, like petitioner’s debts at issue here, are over 10 years old. 31 U. S. C. §3716(e)(1). In 1991, however, the Higher Education Technical Amendments, 105 Stat. 123, sweepingly eliminated time limitations as to certain loans: “Notwithstanding any other provision of statute . . . no limitation shall terminate the period within which suit may be filed, a judgment may be enforced, or an offset, garnishment, or other action initiated or taken,” 20 U. S. C. §1091a(a)(2), for the repayment of various student loans, including the loans at issue here, §1091a(a)(2)(D). The Higher Education Technical Amendments, by their terms, did not make Social Security benefits subject to offset; these were still protected by the Social Security Act’s anti-attachment rule. Only in 1996 did the Debt Collection Improvement Act—in amending and recodifying the Debt Collection Act—provide that, “[n]otwithstanding any other provision of law (including [§407] … ),” with a limited exception not relevant here, “all payment due an individual under … the Social Security Act … shall be subject to offset under this section.” 31 U. S. C. §3716(c)(3)(A)(i). II The Government does not contend that the “notwithstanding” clauses in both the Higher Education Technical Amendments and the Debt Collection Improvement Act trump the Social Security Act’s express-reference provision. Cf. Marcello v. Bonds, 349 U. S. 302, 310 (1955) (“Exemptions from the terms of the … Act are not lightly to be presumed in view of the statement … that modifications must be express[.] But … [u]nless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the … Act, we must hold that the present statute expressly supersedes the … provisions of that Act” (citation omitted)); Great Northern R. Co. v. United States, 208 U. S. 452, 465 (1908). We need not decide the effect of express-reference provisions such as §407(b) to resolve this case. Because the Debt Collection Improvement Act clearly makes Social Security benefits subject to offset, it provides exactly the sort of express reference that the Social Security Act says is necessary to supersede the anti-attachment provision. It is clear that the Higher Education Technical Amendments remove the 10-year limit that would otherwise bar offsetting petitioner’s Social Security benefits to pay off his student loan debt. Petitioner argues that Congress could not have intended in 1991 to repeal the Debt Collection Act’s statute of limitations as to offsets against Social Security benefits—since debt collection by Social Security offset was not authorized until five years later. Therefore, petitioner continues, the Higher Education Technical Amendments’ abrogation of time limits in 1991 only applies to then-valid means of debt collection. We disagree. “The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.” Union Bank v. Wolas, 502 U. S. 151, 158 (1991). Petitioner points out that the Higher Education Technical Amendments, unlike the Debt Collection Improvement Act, do not explicitly mention §407. But §407(b) only requires an express reference to authorize attachment in the first place—which the Debt Collection Improvement Act has already provided. III Nor does the Debt Collection Improvement Act’s 1996 recodification of the Debt Collection Act help petitioner. The Debt Collection Improvement Act, in addition to adding offset authority against Social Security benefits, retained the Debt Collection Act’s general 10-year bar on offset authority. But the mere retention of this previously enacted time bar does not make the time bar apply in all contexts—a result that would extend far beyond Social Security benefits, since it would imply that the Higher Education Technical Amendments’ abrogation of time limits was now a dead letter as to any kind of administrative offset. Rather, the Higher Education Technical Amendments retain their effect as a limited exception to the Debt Collection Act time bar in the student loan context. Finally, we decline to read any meaning into the failed 2004 effort to amend the Debt Collection Act to explicitly authorize offset of debts over 10 years old. See H. R. 5025, 108th Cong., 2d Sess., §642 (Sept. 8, 2004); S. 2806, 108th Cong., 2d Sess., §642 (Sept. 15, 2004). “[F]ailed legislative proposals are ‘a particularly dangerous ground on which to rest an interpretation of a prior statute.’ ” United States v. Craft, 535 U. S. 274, 287 (2002) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990)). In any event, it is unclear what meaning we could read into this effort even if we were inclined to do so, as the failed amendment—which was not limited to offsets against Social Security benefits—would have had a different effect than the interpretation we advance today. Therefore, we affirm the judgment of the Ninth Circuit. It is so ordered.
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547.US.293
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Among longstanding limitations on federal-court jurisdiction otherwise properly exercised are the so-called “domestic relations” and “probate” exceptions. Neither is compelled by the text of the Constitution or federal statute. Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. In view of lower federal-court decisions expansively interpreting the two exceptions, this Court reined in the domestic relations exception in Ankenbrandt v. Richards, 504 U. S. 689, and endeavored similarly to curtail the probate exception in Markham v. Allen, 326 U. S. 490. Petitioner, Vickie Lynn Marshall (Vickie), a.k.a. Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard), who died without providing for Vickie in his will. According to Vickie, J. Howard intended to provide for her through a gift in the form of a “catch-all” trust. Respondent, E. Pierce Marshall (Pierce), J. Howard’s son, was the ultimate beneficiary of J. Howard’s estate plan. While the estate was subject to ongoing Texas Probate Court proceedings, Vickie filed for bankruptcy in California. Pierce filed a proof of claim in the federal bankruptcy court, alleging that Vickie had defamed him when, shortly after J. Howard’s death, her lawyers told the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father’s assets. Pierce sought a declaration that his claim was not dischargeable in bankruptcy. Vickie answered, asserting truth as a defense. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected from J. Howard. Vickie’s tortious interference counterclaim turned her objection to Pierce’s claim into an adversary proceeding, see Fed. Rule Bkrtcy. Proc. 3007, in which the Bankruptcy Court granted summary judgment for Vickie on Pierce’s claim and, after a trial on the merits, entered judgment for Vickie on her counterclaim. The court also held that both Vickie’s objection to Pierce’s claim and her counterclaim qualified as “core proceedings” under 28 U. S. C. §157, which meant that the court had authority to enter a final judgment disposing of those claims. It awarded Vickie substantial compensatory and punitive damages. Pierce then filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie’s tortious interference claim could be tried only in the Texas probate proceedings. The Bankruptcy Court denied the motion. Relying on Markham, the Bankruptcy Court observed that a federal court has jurisdiction to adjudicate rights in probate property, so long as its final judgment does not interfere with the state court’s possession of the property. Subsequently, the Texas Probate Court declared that J. Howard’s estate plan was valid. Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court’s judgment. Among other things, the District Court held that the probate exception did not reach Vickie’s counterclaim. Citing Markham, 326 U. S., at 494, the court said that the exception would bar federal jurisdiction only if such jurisdiction would “interfere” with the probate proceedings. It would not do so, the court concluded, because: (1) success on Vickie’s counterclaim did not necessitate any declaration that J. Howard’s will was invalid, and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind Vickie’s counterclaim asserted. The court also held that Vickie’s claim did not qualify as a “core proceedin[g]” over which a bankruptcy court may exercise plenary power, see 28 U. S. C. §157(b)–(c). Accordingly, the District Court treated the Bankruptcy Court’s judgment as proposed, rather than final, and undertook de novo review. Adopting and supplementing the Bankruptcy Court’s findings, the District Court determined that Pierce had tortiously interfered with Vickie’s expectancy by, inter alia, conspiring to suppress or destroy the inter vivos trust instrument J. Howard had directed his lawyers to prepare for Vickie, and to strip J. Howard of his assets by backdating, altering, and otherwise falsifying documents and presenting them to J. Howard under false pretenses. The District Court awarded Vickie some $44.3 million in compensatory damages and, based on “overwhelming” evidence of Pierce’s willfulness, maliciousness, and fraud, an equal amount in punitive damages. The Ninth Circuit reversed. Although the Court of Appeals recognized that Vickie’s claim does not involve the administration of an estate, the probate of a will, or any other purely probate matter, it nonetheless held that the probate exception bars federal jurisdiction in this case. It read the exception broadly to exclude from the federal courts’ adjudicatory authority not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent’s estate planning instrument, whether those questions involve fraud, undue influence, or tortious interference with the testator’s intent. The court also held that a State’s vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any probate related matter, including claims respecting tax liability, debt, gift, and tort. Noting that the Probate Court had ruled it had exclusive jurisdiction over all of Vickie’s claims, the Ninth Circuit held that ruling binding on the Federal District Court. Held: The Ninth Circuit had no warrant from Congress, or from this Court’s decisions, for its sweeping extension of the probate exception recognized in those decisions. Because this case does not fall within the exception’s scope, the District Court properly asserted jurisdiction over Vickie’s counterclaim against Pierce. Pp. 8–18. (a) Ankenbrandt addressed the domestic relations exception’s derivation and limits. Among other things, the Court, 504 U. S., at 693–695, traced the current exception to Barber v. Barber, 21 How. 582, 584–589, in which the Court had announced in dicta—without citation or discussion—that federal courts lack jurisdiction over suits for divorce or alimony. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, 504 U. S., at 695–697, the Ankenbrandt Court, id., at 698–701, anchored the exception in the Judiciary Act of 1789, which, until 1948, provided circuit court diversity jurisdiction over “all suits of a civil nature at common law or in equity.” The Barber majority, the Ankenbrandt Court acknowledged, 504 U. S., at 698, did not expressly tie its announcement of a domestic relations exception to the text of the diversity statute, but the Barber dissenters made the connection. Because English chancery courts lacked authority to issue divorce and alimony decrees, the dissenters stated, United States courts similarly lacked authority to decree divorces or award alimony, 21 How., at 605. The Ankenbrandt Court was “content” “to rest [its] conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of [Barber’s] historical justifications, but, “rather,” on “Congress’ apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948,” 504 U. S., at 700. Ankenbrandt further determined that Congress did not intend to terminate the exception in 1948 when it “replace[d] the law/equity distinction with the phrase ‘all civil actions.’ ” Id., at 700. The Ankenbrandt Court nevertheless emphasized that the exception covers only “a narrow range of domestic relations issues.” Id., at 701. Noting that some lower federal courts had applied the exception “well beyond the circumscribed situations posed by Barber and its progeny,” ibid., the Court clarified that only “divorce, alimony, and child custody decrees” remain outside federal jurisdictional bounds, id., at 703, 704. While recognizing state tribunals’ “special proficiency” in handling issues arising in the granting of such decrees, id., at 704, the Court viewed federal courts as equally equipped to deal with complaints alleging torts, ibid. Pp. 8–11. (b) This Court has recognized a probate exception, kin to the domestic relations exception, to otherwise proper federal jurisdiction. See, e.g., Markham, the Court’s most recent and pathmarking pronouncement on the subject. Among other things, the Markham Court first stated that, although “a federal court has no jurisdiction to probate a will or administer an estate[,] it has [long] been established … that federal courts of equity have jurisdiction to entertain suits ‘in favor of creditors, legatees and heirs’ and other claimants against a decedent’s estate ‘to establish their claims’ so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” 326 U. S., at 494. The Court next described a probate exception of distinctly limited scope: “[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, … it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court.” Ibid. The first of these quoted passages is not a model of clear statement, and some lower federal courts have read the words “interfere with the probate proceedings” to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent’s estate, including an executor’s breach of fiduciary duty. This Court reads Markham’s enigmatic words, in sync with the second above-quoted passage, to proscribe “disturb[ing] or affect[ing] the possession of property in the custody of a state court.” Ibid. Though that reading renders the first-quoted passage in part redundant, redundancy in this context is preferable to incoherence. This Court therefore comprehends Markham’s “interference” language as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e.g., Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U. S. 189, 195–196. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from disposing of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. Pp. 11–15. (c) Vickie’s claim does not involve the administration of an estate, the probate of a will, or any other purely probate matter. Provoked by Pierce’s claim in the bankruptcy proceedings, Vickie’s claim alleges the widely recognized tort of interference with a gift or inheritance. She seeks an in personam judgment against Pierce, not the probate or annulment of a will. Cf. Sutton v. English, 246 U. S. 199, 208. Nor does she seek to reach a res in a state court’s custody. See Markham, 326 U. S., at 494. Furthermore, no “sound policy considerations” militate in favor of extending the probate exception to cover this case. Cf. Ankenbrandt, 504 U. S., at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no “special proficiency” in handling such issues. Cf. id., at 704. P. 15. (d) This Court rejects the Ninth Circuit’s alternate rationale that the Texas Probate Court’s jurisdictional ruling bound the Federal District Court. Texas courts have recognized a state-law tort action for interference with an expected gift or inheritance. It is clear, under Erie R. Co. v. Tompkins, 304 U. S. 64, that Texas law governs the substantive elements of Vickie’s tortious interference claim. But it is also clear that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory tort. See Tennessee Coal, Iron & R. Co. v. George, 233 U. S. 354, 360. Jurisdiction is determined “by the law of the court’s creation and cannot be defeated by the extraterritorial operation of a [state] statute … , even though it created the right of action.” Ibid. Directly on point, the Court has held that federal-court jurisdiction, “having existed from the beginning of the Federal government, [can] not be impaired by subsequent state legislation creating courts of probate.” McClellan v. Carland, 217 U. S. 268, 281. Durfee v. Duke, 375 U. S. 106, on which the Ninth Circuit relied, is not to the contrary. Durfee stands only for the proposition that a state court’s final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See id., at 111, 115. At issue here, however, is not the Texas Probate Court’s jurisdiction, but the federal courts’ jurisdiction to entertain Vickie’s tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. Pp. 15–17. (e) The Ninth Circuit may address on remand the questions whether Vickie’s claim was “core” and Pierce’s arguments concerning claim and issue preclusion. P. 17–18. 392 F. 3d 1118, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment.
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In Cohens v. Virginia, Chief Justice Marshall famously cautioned: “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should . . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” 6 Wheat. 264, 404 (1821). Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called “domestic relations” and “probate” exceptions. Neither is compelled by the text of the Constitution or federal statute. Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e.g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 584–588 (1984); Spindel v. Spindel, 283 F. Supp. 797, 802 (EDNY 1968) (collecting cases and commentary revealing vulnerability of historical explanation for domestic relations exception); Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125–126, and n. 256 (1997) (describing historical explanation for probate exception as “an exercise in mythography”). In the years following Marshall’s 1821 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In Ankenbrandt v. Richards, 504 U. S. 689 (1992), this Court reined in the “domestic relations exception.” Earlier, in Markham v. Allen, 326 U. S. 490 (1946), the Court endeavored similarly to curtail the “probate exception.” Nevertheless, the Ninth Circuit in the instant case read the probate exception broadly to exclude from the federal courts’ adjudicatory authority “not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent’s estate planning instrument.” 392 F. 3d 1118, 1133 (2004). The Court of Appeals further held that a State’s vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any “probate related matter,” including claims respecting “tax liability, debt, gift, [or] tort.” Id., at 1136. We hold that the Ninth Circuit had no warrant from Congress, or from decisions of this Court, for its sweeping extension of the probate exception. I Petitioner, Vickie Lynn Marshall (Vickie), also known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his will. According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a “catch-all” trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard’s sons, was the ultimate beneficiary of J. Howard’s estate plan, which consisted of a living trust and a “pourover” will. Under the terms of the will, all of J. Howard’s assets not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard’s fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard’s estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U. S. C. §1101 et seq., in the United States Bankruptcy Court for the Central District of California. See 275 B. R. 5, 8 (CD Cal. 2002). In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, id., at 9; see 11 U. S. C. §501, alleging that Vickie had defamed him when, shortly after J. Howard’s death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father’s assets. 275 B. R., at 9. Pierce sought a declaration that the debt he asserted in that claim was not dischargeable in bankruptcy. Ibid.[Footnote 1] Vickie answered, asserting truth as a defense. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. Ibid.; see App. 23–25. Vickie alleged that Pierce prevented the transfer of his father’s intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard’s expressed wishes. Id., at 24. Vickie’s tortious interference counterclaim turned her objection to Pierce’s claim into an adversary proceeding. Id., at 39; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce’s claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 253 B. R. 550, 558–559 (2000). The Bankruptcy Court also held that both Vickie’s objection to Pierce’s claim and Vickie’s counterclaim qualified as “core proceedings” under 28 U. S. C. §157, which meant that the court had authority to enter a final judgment disposing of those claims. See 257 B. R. 35, 39–40 (2000). The court awarded Vickie compensatory damages of more than $449 million—less whatever she recovered in the ongoing probate action in Texas—as well as $25 million in punitive damages. Id., at 40. Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie’s tortious interference claim could be tried only in the Texas probate proceedings. Id., at 36. The Bankruptcy Court held that “the ‘probate exception’ argument was waived” because it was not timely raised. Id., at 39. Relying on this Court’s decision in Markham, the court observed that a federal court has jurisdiction to “adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court’s possession of the property.” 257 B. R., at 38 (citing Markham, 326 U. S., at 494). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father’s will were valid. 392 F. 3d, at 1124–1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ibid., but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, id., at 1128. Following a jury trial, the Probate Court declared the living trust and J. Howard’s will valid. Id., at 1129. Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court’s judgment. While rejecting the Bankruptcy Court’s determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie’s claim. 264 B. R. 609, 619–625 (CD Cal. 2001). The Bankruptcy Court “did not assert jurisdiction generally over the probate proceedings … or take control over [the] estate’s assets,” the District Court observed, id., at 621, “[t]hus, the probate exception would bar federal jurisdiction over Vickie’s counterclaim only if such jurisdiction would ‘interfere’ with the probate proceedings,” ibid. (quoting Markham, 326 U. S., at 494). Federal jurisdiction would not “interfere” with the probate proceedings, the District Court concluded, because: (1) success on Vickie’s counterclaim did not necessitate any declaration that J. Howard’s will was invalid, 264 B. R., at 621; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie’s counterclaim, id., at 622–625. The District Court also held that Vickie’s claim did not qualify as a “core proceedin[g] arising under title 11, or arising in a case under title 11.” 28 U. S. C. §157(b)(1); see 264 B. R., at 625–632. A bankruptcy court may exercise plenary power only over “core proceedings.” See §157(b)–(c).[Footnote 2] In non-core matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See §157(c)(1). Accordingly, the District Court treated the Bankruptcy Court’s judgment as “proposed[,] rather than final,” and undertook a “comprehensive, complete, and independent review of” the Bankruptcy Court’s determinations. 264 B. R., at 633. Adopting and supplementing the Bankruptcy Court’s findings, the District Court determined that Pierce had tortiously interfered with Vickie’s expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his assets from the date of their marriage. See 275 B. R., at 25–30, 51–53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his assets by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See id., at 36–50, 57–58; see also 253 B. R., at 554–556, 559–560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory damages. 275 B. R., at 53–57. In addition, finding “overwhelming” evidence of Pierce’s “willfulness, maliciousness, and fraud,” the District Court awarded an equal amount in punitive damages. Id., at 57–58. The Court of Appeals for the Ninth Circuit reversed. The appeals court recognized that Vickie’s claim “does not involve the administration of an estate, the probate of a will, or any other purely probate matter.” 392 F. 3d, at 1133. Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth Circuit’s view, a claim falls within the probate exception if it raises “questions which would ordinarily be decided by a probate court in determining the validity of the decedent’s estate planning instrument,” whether those questions involve “fraud, undue influence[, or] tortious interference with the testator’s intent.” Ibid. The Ninth Circuit was also of the view that state-court delineation of a probate court’s exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: “Where a state has relegated jurisdiction over probate matters to a special court and [the] state’s trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then federal courts also lack jurisdiction over probate matters.” Id., at 1136. Noting that “[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie[’s] claims,” the Ninth Circuit held that “ruling … binding on the United States [D]istrict [C]ourt.” Ibid. (citing Durfee v. Duke, 375 U. S. 106, 115–116 (1963)). We granted certiorari, 545 U. S. ___ (2005), to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth Circuit’s judgment. II In Ankenbrandt v. Richards, 504 U. S. 689 (1992), we addressed both the derivation and the limits of the “domestic relations exception” to the exercise of federal jurisdiction. Carol Ankenbrandt, a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father (Ankenbrandt’s former husband) and his female companion, both citizens of Louisiana. Id., at 691. Ankenbrandt’s complaint sought damages for the defendants’ alleged sexual and physical abuse of the children. Ibid. Federal jurisdiction was predicated on diversity of citizenship. Ibid. (citing 28 U. S. C. §1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that Ankenbrandt’s suit fell within “the ‘domestic relations’ exception to diversity jurisdiction.” 504 U. S., at 692. The Court of Appeals agreed and affirmed. Ibid. We reversed the Court of Appeals’ judgment. Id., at 706–707. Holding that the District Court improperly refrained from exercising jurisdiction over Ankenbrandt’s tort claim, id., at 704, we traced explanation of the current domestic relations exception to Barber v. Barber, 21 How. 582 (1859). See Ankenbrandt, 504 U. S., at 693–695. In Barber, the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Barber Court announced—without citation or discussion—that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 584–589; see Ankenbrandt, 504 U. S., at 693–695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, id., at 695–697, the Court in Ankenbrandt anchored the exception in Congress’ original provision for diversity jurisdiction, id., at 698–701. Beginning at the beginning, the Court recalled: “The Judiciary Act of 1789 provided that ‘the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and … an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.’ ” Id., at 698 (quoting Act of Sept. 24, 1789, §11, 1 Stat. 78; emphasis added in Ankenbrandt). The defining phrase, “all suits of a civil nature at common law or in equity,” the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 1948, when Congress adopted the more economical phrase, “all civil actions.” 504 U. S., at 698; 1948 Judicial Code and Judiciary Act, 62 Stat. 930, 28 U. S. C. §1332. The Barber majority, we acknowledged in Ankenbrandt, did not expressly tie its announcement of a domestic relations exception to the text of the diversity statute. 504 U. S., at 698. But the dissenters in that case made the connection. They stated that English courts of chancery lacked authority to issue divorce and alimony decrees. Because “the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England,” Barber, 21 How., at 605 (opinion of Daniel, J.), the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, ibid. Such relief, in other words, would not fall within the diversity statute’s original grant of jurisdiction over “all suits of a civil nature at common law or in equity.” We concluded in Ankenbrandt that “it may be inferred fairly that the jurisdictional limitation recognized by the [Barber] Court rested on th[e] statutory basis” indicated by the dissenters in that case. 504 U. S., at 699. We were “content” in Ankenbrandt “to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based.” Id., at 700. “[R]ather,” we relied on “Congress’ apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to ‘suits of a civil nature at common law or in equity.’ ” Ibid. (quoting 1 Stat. 78). We further determined that Congress did not intend to terminate the exception in 1948 when it “replace[d] the law/equity distinction with the phrase ‘all civil actions.’ ” 504 U. S., at 700. Absent contrary indications, we presumed that Congress meant to leave undisturbed “the Court’s nearly century-long interpretation” of the diversity statute “to contain an exception for certain domestic relations matters.” Ibid. We nevertheless emphasized in Ankenbrandt that the exception covers only “a narrow range of domestic relations issues.” Id., at 701. The Barber Court itself, we reminded, “sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction.” 504 U. S., at 702. Noting that some lower federal courts had applied the domestic relations exception “well beyond the circumscribed situations posed by Barber and its progeny,” id., at 701, we clarified that only “divorce, alimony, and child custody decrees” remain outside federal jurisdictional bounds, id., at 703, 704. While recognizing the “special proficiency developed by state tribunals … in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees,” id., at 704, we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, ibid. III Federal jurisdiction in this case is premised on 28 U. S. C. §1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a “probate exception,” kin to the domestic relations exception, to otherwise proper federal jurisdiction. See Markham v. Allen, 326 U. S., at 494; see also Sutton v. English, 246 U. S. 199 (1918); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33 (1909). Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 1789. Markham, the Court’s most recent and pathmarking pronouncement on the probate exception, stated that “the equity jurisdiction conferred by the Judiciary Act of 1789 … , which is that of the English Court of Chancery in 1789, did not extend to probate matters.” 326 U. S., at 494. See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Jurisdiction, 74 S. Cal. L. Rev. 1479 (2001). As in Ankenbrandt, so in this case, “[w]e have no occasion … to join the historical debate” over the scope of English chancery jurisdiction in 1789, 504 U. S., at 699, for Vickie Marshall’s claim falls far outside the bounds of the probate exception described in Markham. We therefore need not consider in this case whether there exists any uncodified probate exception to federal bankruptcy jurisdiction under §1334.[Footnote 3] In Markham, the plaintiff Alien Property Custodian[Footnote 4] commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian’s asserted rights regarding a decedent’s estate. 326 U. S., at 491–492. Jurisdiction was predicated on §24(1) of the Judicial Code, now 28 U. S. C. §1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the will. Reversing the Ninth Circuit, which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated: “It is true that a federal court has no jurisdiction to probate a will or administer an estate … . But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits ‘in favor of creditors, legatees and heirs’ and other claimants against a decedent’s estate ‘to establish their claims’ so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” 326 U. S., at 494 (quoting Waterman, 215 U. S., at 43). Next, the Court described a probate exception of distinctly limited scope: “[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, . . . it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court.” 326 U. S., at 494. The first of the above-quoted passages from Markham is not a model of clear statement. The Court observed that federal courts have jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent’s estate, “so long as the federal court does not interfere with the probate proceedings.” Ibid. (emphasis added). Lower federal courts have puzzled over the meaning of the words “interfere with the probate proceedings,” and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent’s estate. See, e.g., Mangieri v. Mangieri, 226 F. 3d 1, 2–3 (CA1 2000) (breach of fiduciary duty by executor); Golden ex rel. Golden v. Golden, 382 F. 3d 348, 360–362 (CA3 2004) (same); Lepard v. NBD Bank, 384 F. 3d 232–237 (CA6 2004) (breach of fiduciary duty by trustee); Storm v. Storm, 328 F. 3d 941, 943–945 (CA7 2003) (probate exception bars claim that plaintiff’s father tortiously interfered with plaintiff’s inheritance by persuading trust grantor to amend irrevocable inter vivos trust); Rienhardt v. Kelly, 164 F. 3d 1296, 1300–1301 (CA10 1999) (probate exception bars claim that defendants exerted undue influence on testator and thereby tortiously interfered with plaintiff’s expected inheritance). We read Markham’s enigmatic words, in sync with the second above-quoted passage, to proscribe “disturb[ing] or affect[ing] the possession of property in the custody of a state court.” 326 U. S., at 494. True, that reading renders the first-quoted passage in part redundant, but redundancy in this context, we do not doubt, is preferable to incoherence. In short, we comprehend the “interference” language in Markham as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e.g., Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U. S. 189, 195–196 (1935); Waterman, 215 U. S., at 45–46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. A As the Court of Appeals correctly observed, Vickie’s claim does not “involve the administration of an estate, the probate of a will, or any other purely probate matter.” 392 F. 3d, at 1133. Provoked by Pierce’s claim in the bankruptcy proceedings, Vickie’s claim, like Carol Ankenbrandt’s, alleges a widely recognized tort. See King v. Acker, 725 S. W. 2d 750, 754 (Tex. App. 1987); Restatement (Second) of Torts §774B (1977) (“One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a will. Cf. Sutton, 246 U. S., at 208 (suit to annul a will found “supplemental to the proceedings for probate of the will” and therefore not cognizable in federal court). Nor does she seek to reach a res in the custody of a state court. See Markham, 326 U. S., at 494. Furthermore, no “sound policy considerations” militate in favor of extending the probate exception to cover the case at hand. Cf. Ankenbrandt, 504 U. S., at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no “special proficiency … in handling [such] issues.” Cf. id., at 704. B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie’s claim. Noting that the Texas Probate Court “ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall’s claims against E. Pierce Marshall,” the Ninth Circuit held that “ruling … binding on the United States [D]istrict [C]ourt.” 392 F. 3d, at 1136. We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at 754; Brandes v. Rice Trust, Inc., 966 S. W. 2d 144, 146–147 (Tex. App. 1998).[Footnote 5] It is clear, under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that Texas law governs the substantive elements of Vickie’s tortious interference claim. It is also clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory tort. We have long recognized that “a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction.” Tennessee Coal, Iron & R. Co. v. George, 233 U. S. 354, 360 (1914). Jurisdiction is determined “by the law of the court’s creation and cannot be defeated by the extraterritorial operation of a [state] statute . . . , even though it created the right of action.” Ibid. Directly on point, we have held that the jurisdiction of the federal courts, “having existed from the beginning of the Federal government, [can] not be impaired by subsequent state legislation creating courts of probate.” McClellan v. Carland, 217 U. S. 268, 281 (1910) (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing Waterman, 215 U. S. 33)). Our decision in Durfee v. Duke, 375 U. S. 106 (1963), relied upon by the Ninth Circuit, 392 F. 3d, at 1136, is not to the contrary. Durfee stands only for the proposition that a state court’s final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 375 U. S., at 111, 115. At issue here, however, is not the Texas Probate Court’s jurisdiction, but the federal courts’ jurisdiction to entertain Vickie’s tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie’s counterclaim against Pierce. IV After determining that Vickie’s claim was not a “core proceeding,” the District Court reviewed the case de novo and entered its final judgment on March 7, 2002. 275 B. R., at 5–8. The Texas Probate Court’s judgment became final on February 11, 2002, nearly one month earlier. App. to Pet. for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie’s claim was “core”; nor did it address Pierce’s arguments concerning claim and issue preclusion. 392 F. 3d, at 1137. These issues remain open for consideration on remand. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Among debts not dischargeable in bankruptcy, see 11 U. S. C. §523(a), are those arising from “willful and malicious injury by the debtor,” §523(a)(6). Footnote 2 “Core proceedings include, but are not limited to— “(A) matters concerning the administration of the estate; “(B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11; “(C) counterclaims by the estate against persons filing claims against the estate; “(D) orders in respect to obtaining credit; “(E) orders to turn over property of the estate; “(F) proceedings to determine, avoid, or recover preferences; “(G) motions to terminate, annul, or modify the automatic stay; “(H) proceedings to determine, avoid, or recover fraudulent conveyances; “(I) determinations as to the dischargeability of particular debts; “(J) objections to discharges; “(K) determinations of the validity, extent, or priority of liens; “(L) confirmations of plans; “(M) orders approving the use or lease of property, including the use of cash collateral; “(N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; “(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims; and “(P) recognition of foreign proceedings and other matters under chapter 15 of title 11.” 28 U. S. C. A. §157(b)(2) (1993 ed. and July 2005 Supp.). Footnote 3 We note that the broad grant of jurisdiction conferred by §1334(b) is subject to a mandatory abstention provision applicable to certain state-law claims. Section 1334(c)(2) provides: “Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.” That provision is, in turn, qualified: “Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2).” §157(b)(4). Because the Bankruptcy Court rejected Pierce’s motion for mandatory abstention as untimely, 257 B. R. 35, 39 (CD Cal. 2000), we need not consider whether these provisions might have required abstention upon a timely motion. Footnote 4 Section 6 of the Trading with the Enemy Act, 40 Stat. 415, 50 U. S. C. App., authorizes the President to appoint an official known as the “alien property custodian,” who is responsible for “receiv[ing,] … hold[ing], administer[ing], and account[ing] for” “all money and property in the United States due or belonging to an enemy, or ally of enemy . . . .” The Act was originally enacted during World War I “to permit, under careful safeguards and restrictions, certain kinds of business to be carried on” among warring nations, and to “provid[e] for the care and administration of the property and property rights of enemies and their allies in this country pending the war.” Markham v. Cabell, 326 U. S. 404, 414, n. 1 (1945) (Burton, J., concurring) (quoting S. Rep. No. 113, 65th Cong., 1st Sess., p. 1 (1917)). Footnote 5 Texas appellate courts have on occasion held claims of tortious interference with an expected inheritance “barred” by a prior probate court judgment, apparently applying ordinary principles of preclusion. See, e.g., Thompson v. Deloitte & Touche, 902 S. W. 2d 13, 16 (Tex. App. 1995) (final probate court judgment bars claim of tortious interference with inheritance expectancy because probate court “necessarily found that [the decedent] signed the will with testamentary capacity, and that it reflected his intent, was not the result of coercion or undue influence, and was valid”); Neill v. Yett, 746 S. W. 2d 32, 35–36 (Tex. App. 1988) (complaint alleging fraud and tortious interference with inheritance expectancy, filed more than two years after will was admitted to probate, was barred by both the statute of limitations and the final probate judgment, and failed to state the elements of the claim). Neither Thompson nor Neill questions the Texas trial courts’ subject-matter jurisdiction over the claims in question. Pierce maintains that Thompson, Neill, and other Texas decisions support his contention that preclusion principles bar Vickie’s claim. See Brief for Respondent 36–38. Vickie argues to the contrary. See Brief for Petitioner 42 n. 30 (urging that preclusion does not apply because (1) Vickie’s claim was not litigated to final judgment in the Texas probate proceedings; (2) having presented her claim in the Bankruptcy Court years before she joined the Texas will contest, Vickie was not obliged to present her claim in the Texas proceedings; (3) the Bankruptcy Court’s judgment preceded the Probate Court judgment; and (4) the Texas Probate Court did not have before it important evidence). See also Tex. Rule Civ. Proc. 97; Ingersoll-Rand Co. v. Valero Energy Corp., 997 S. W. 2d 203, 206–207 (Tex. 1999). The matter of preclusion remains open for consideration on remand. See infra, at 18.
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546.US.132
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In removing petitioner Martins’ state-court class action to federal court on diversity grounds, respondents (collectively, Franklin) acknowledged that the amount in controversy was not clear from the face of the state-court complaint, but argued that this requirement for federal diversity jurisdiction was nonetheless satisfied under precedent suggesting that punitive damages and attorney’s fees could be aggregated in making the calculation. The District Court denied the Martins’ motion to remand to state court and eventually dismissed the case with prejudice. Reversing and remanding with instructions to remand to state court, the Tenth Circuit agreed with the Martins that their suit failed to satisfy the amount-in-controversy requirement and rejected Franklin’s aggregation theory under decisions issued after the District Court’s remand decision. The latter court then denied the Martins’ motion for attorney’s fees because Franklin had legitimate grounds for believing this case fell within federal-court jurisdiction. Affirming, the Tenth Circuit disagreed with the Martins’ argument that attorney’s fees should be granted on remand as a matter of course under 28 U. S. C. §1447(c), which provides that a remand order “may require payment of just costs and any actual expenses, including attorney fees,” but provides little guidance on when fees are warranted. The court noted that fee awards are left to the district court’s discretion, subject to review only for abuse of discretion; pointed out that, under Circuit precedent, the key factor in deciding whether to award fees is the propriety of removal; and held that, because Franklin had relied on case law only subsequently held to be unsound, its basis for removal was objectively reasonable, and the fee denial was not an abuse of discretion. Held: Absent unusual circumstances, attorney’s fees should not be awarded under §1447(c) when the removing party has an objectively reasonable basis for removal. Conversely, where no objectively reasonable basis exists, fees should be awarded. This Court rejects the Martins’ argument for adopting a strong presumption in favor of awarding fees. The reasons for adopting such a presumption in Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (per curiam), are absent here. Also rejected is Franklin’s argument that §1447(c) simply grants courts jurisdiction to award costs and attorney’s fees when otherwise warranted. Were the statute strictly jurisdictional, there would be no need to limit awards to “just” costs; any award authorized by other provisions of law would presumably be “just.” The Court therefore gives the statute its natural reading: Section 1447(c) authorizes courts to award costs and fees, but only when such an award is just. That standard need not be defined narrowly, as the Solicitor General argues, by awarding fees only on a showing that the unsuccessful party’s position was frivolous, unreasonable, or without foundation. Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422, and Flight Attendants v. Zipes, 491 U. S. 754, 762, distinguished. The fact that a §1447(c) fee award is discretionary does not mean that there is no governing legal standard. When applying fee-shifting statutes, the Court has found limits in “the large objectives” of the relevant Act. E.g., Zipes, 491 U. S., at 759. The appropriate test for awarding fees under §1447(c) should recognize Congress’ desire to deter removals intended to prolong litigation and impose costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied. In light of these “large objectives,” the standard for awarding fees should turn on the reasonableness of the removal. In applying the general rule of reasonableness, district courts retain discretion to consider whether unusual circumstances warrant a departure in a given case. A court’s reasons for departing, however, should be “faithful to the purposes” of awarding fees under §1447(c). Fogerty v. Fantasy, Inc., 510 U. S. 517, 534, n. 19. Pp. 3–9. 393 F. 3d 1143, affirmed. Roberts, C. J., delivered the opinion for a unanimous Court.
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A civil case commenced in state court may, as a general matter, be removed by the defendant to federal district court, if the case could have been brought there originally. 28 U. S. C. §1441 (2000 ed. and Supp. II). If it appears that the federal court lacks jurisdiction, however, “the case shall be remanded.” §1447(c). An order remanding a removed case to state court “may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Ibid. Although §1447(c) expressly permits an award of attorney’s fees, it provides little guidance on when such fees are warranted. We granted certiorari to determine the proper standard for awarding attorney’s fees when remanding a case to state court. I Petitioners Gerald and Juana Martin filed a class-action lawsuit in New Mexico state court against respondents Franklin Capital Corporation and Century-National Insurance Company (collectively, Franklin). Franklin removed the case to Federal District Court on the basis of diversity of citizenship. See §§1332, 1441 (2000 ed. and Supp. II). In its removal notice, Franklin acknowledged that the amount in controversy was not clear from the face of the complaint—no reason it should be, since the complaint had been filed in state court—but argued that this requirement for federal diversity jurisdiction was nonetheless satisfied. In so arguing, Franklin relied in part on precedent suggesting that punitive damages and attorney’s fees could be aggregated in a class action to meet the amount-in-controversy requirement. See App. 35. Fifteen months later, the Martins moved to remand to state court on the ground that their claims failed to satisfy the amount-in-controversy requirement. The District Court denied the motion and eventually dismissed the case with prejudice. On appeal, the Court of Appeals for the Tenth Circuit agreed with the Martins that the suit failed to satisfy the amount-in-controversy requirement. The Tenth Circuit rejected Franklin’s contention that punitive damages and attorney’s fees could be aggregated in calculating the amount in controversy, in part on the basis of decisions issued after the District Court’s remand decision. The Court of Appeals reversed and remanded to the District Court with instructions to remand the case to state court. 251 F. 3d 1284, 1294 (2001). Back before the District Court, the Martins moved for attorney’s fees under §1447(c). The District Court reviewed Franklin’s basis for removal and concluded that, although the Court of Appeals had determined that removal was improper, Franklin “had legitimate grounds for believing this case fell within th[e] Court’s jurisdiction.” App. to Pet. for Cert. 20a. Because Franklin “had objectively reasonable grounds to believe the removal was legally proper,” the District Court denied the Martins’ request for fees. Ibid. The Martins appealed again, arguing that §1447(c) requires granting attorney’s fees on remand as a matter of course. The Tenth Circuit disagreed, noting that awarding fees is left to the “wide discretion” of the district court, subject to review only for abuse of discretion. 393 F. 3d 1143, 1146 (2004). Under Tenth Circuit precedent, the “ ‘key factor’ ” in deciding whether to award fees under §1447(c) is “ ‘the propriety of defendant’s removal.’ ” Ibid. (quoting Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F. 3d 318, 322 (CA10 1997)). In calculating the amount in controversy when it removed the case, Franklin had relied on case law only subsequently held to be unsound, and therefore Franklin’s basis for removal was objectively reasonable. 393 F. 3d, at 1148. Because the District Court had not abused its discretion in denying fees, the Tenth Circuit affirmed. Id., at 1151. We granted certiorari, 544 U. S. ___ (2005), to resolve a conflict among the Circuits concerning when attorney’s fees should be awarded under §1447(c). Compare, e.g., Hornbuckle v. State Farm Lloyds, 385 F. 3d 538, 541 (CA5 2004) (“Fees should only be awarded if the removing defendant lacked objectively reasonable grounds to believe the removal was legally proper” (internal quotation marks omitted)), with Sirotzky v. New York Stock Exchange, 347 F. 3d 985, 987 (CA7 2003) (“[P]rovided removal was improper, the plaintiff is presumptively entitled to an award of fees”), and Hofler v. Aetna U. S. Healthcare of Cal., Inc., 296 F. 3d 764, 770 (CA9 2002) (affirming fee award even when “the defendant’s position may be fairly supportable” (internal quotation marks omitted)). We hold that, absent unusual circumstances, attorney’s fees should not be awarded when the removing party has an objectively reasonable basis for removal. We therefore affirm the judgment of the Tenth Circuit. II The Martins argue that attorney’s fees should be awarded automatically on remand, or that there should at least be a strong presumption in favor of awarding fees. Section 1447(c), however, provides that a remand order “may” require payment of attorney’s fees—not “shall” or “should.” As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994), “[t]he word ‘may’ clearly connotes discretion. The automatic awarding of attorney’s fees to the prevailing party would pretermit the exercise of that discretion.” Congress used the word “shall” often enough in §1447(c)—as when it specified that removed cases apparently outside federal jurisdiction “shall be remanded”—to dissuade us from the conclusion that it meant “shall” when it used “may” in authorizing an award of fees. The Martins are on somewhat stronger ground in pressing for a presumption in favor of awarding fees. As they explain, we interpreted a statute authorizing a discretionary award of fees to prevailing plaintiffs in civil rights cases to nonetheless give rise to such a presumption. Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968) (per curiam). But this case is not at all like Piggie Park. In Piggie Park, we concluded that a prevailing plaintiff in a civil rights suit serves as a “ ‘private attorney general,’ ” helping to ensure compliance with civil rights laws and benefiting the public by “vindicating a policy that Congress considered of the highest priority.” Ibid. We also later explained that the Piggie Park standard was appropriate in that case because the civil rights defendant, who is required to pay the attorney’s fees, has violated federal law. See Flight Attendants v. Zipes, 491 U. S. 754, 762 (1989) (“Our cases have emphasized the crucial connection between liability for violation of federal law and liability for attorney’s fees under federal fee-shifting statutes”). In this case, plaintiffs do not serve as private attorneys general when they secure a remand to state court, nor is it reasonable to view the defendants as violators of federal law. To the contrary, the removal statute grants defendants a right to a federal forum. See 28 U. S. C. §1441 (2000 ed. and Supp. II). A remand is necessary if a defendant improperly asserts this right, but incorrectly invoking a federal right is not comparable to violating substantive federal law. The reasons for adopting a strong presumption in favor of awarding fees that were present in Piggie Park are accordingly absent here. In the absence of such reasons, we are left with no sound basis for a similar presumption. Instead, had Congress intended to award fees as a matter of course to a party that successfully obtains a remand, we think that “[s]uch a bold departure from traditional practice would have surely drawn more explicit statutory language and legislative comment.” Fogerty, supra, at 534. For its part, Franklin begins by arguing that §1447(c) provides little guidance on when fees should be shifted because it is not a fee-shifting statute at all. According to Franklin, the provision simply grants courts jurisdiction to award costs and attorney’s fees when otherwise warranted, for example when Federal Rule of Civil Procedure 11 supports awarding fees. Although Franklin is correct that the predecessor to §1447(c) was enacted, in part, because courts would otherwise lack jurisdiction to award costs on remand, see Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 386–387 (1884), there is no reason to assume Congress went no further than conferring jurisdiction when it acted. Congress could have determined that the most efficient way to cure this jurisdictional defect was to create a substantive basis for ordering costs. The text supports this view. If the statute were strictly jurisdictional, there would be no need to limit awards to “just” costs; any award authorized by other provisions of law would presumably be “just.” We therefore give the statute its natural reading: Section 1447(c) authorizes courts to award costs and fees, but only when such an award is just. The question remains how to define that standard. The Solicitor General would define the standard narrowly, arguing that fees should be awarded only on a showing that the unsuccessful party’s position was “frivolous, unreasonable, or without foundation”—the standard we have adopted for awarding fees against unsuccessful plaintiffs in civil rights cases, see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978), and unsuccessful intervenors in such cases, see Zipes, supra, at 762. Brief for United States as Amicus Curiae 14–16. But just as there is no basis for supposing Congress meant to tilt the exercise of discretion in favor of fee awards under §1447(c), as there was in Piggie Park, so too there is no basis here for a strong bias against fee awards, as there was in Christiansburg Garment and Zipes. The statutory language and context strike us as more evenly balanced between a pro-award and anti-award position than was the case in either Piggie Park or Christiansburg Garment and Zipes; we see nothing to persuade us that fees under §1447(c) should either usually be granted or usually be denied. The fact that an award of fees under §1447(c) is left to the district court’s discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that “a motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982). For these reasons, we have often limited courts’ discretion to award fees despite the absence of express legislative restrictions. That is, of course, what we did in Piggie Park, supra, at 402 (A prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust”), Christiansburg Garment, supra, at 422 (“[A] plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless”), and Zipes, 491 U. S., at 761 (Attorney’s fees should be awarded against intervenors “only where the intervenors’ action was frivolous, unreasonable, or without foundation”). In Zipes, we reaffirmed the principle on which these decisions are based: “Although the text of the provision does not specify any limits upon the district courts’ discretion to allow or disallow fees, in a system of laws discretion is rarely without limits.” Id., at 758. Zipes also explains how to discern the limits on a district court’s discretion. When applying fee-shifting statutes, “we have found limits in ‘the large objectives’ of the relevant Act, which embrace certain ‘equitable considerations.’ ” Id., at 759 (citation omitted).* By enacting the removal statute, Congress granted a right to a federal forum to a limited class of state-court defendants. If fee shifting were automatic, defendants might choose to exercise this right only in cases where the right to remove was obvious. See Christiansburg Garment, supra, at 422 (awarding fees simply because the party did not prevail “could discourage all but the most airtight claims, for seldom can a [party] be sure of ultimate success”). But there is no reason to suppose Congress meant to confer a right to remove, while at the same time discouraging its exercise in all but obvious cases. Congress, however, would not have enacted §1447(c) if its only concern were avoiding deterrence of proper removals. Instead, Congress thought fee shifting appropriate in some cases. The process of removing a case to federal court and then having it remanded back to state court delays resolution of the case, imposes additional costs on both parties, and wastes judicial resources. Assessing costs and fees on remand reduces the attractiveness of removal as a method for delaying litigation and imposing costs on the plaintiff. The appropriate test for awarding fees under §1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied. In light of these “ ‘large objectives,’ ” Zipes, supra, at 759, the standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney’s fees under §1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. See, e.g., Hornbuckle, 385 F. 3d, at 541; Valdes v. Wal-Mart Stores, Inc., 199 F. 3d 290, 293 (CA5 2000). In applying this rule, district courts retain discretion to consider whether unusual circumstances warrant a departure from the rule in a given case. For instance, a plaintiff’s delay in seeking remand or failure to disclose facts necessary to determine jurisdiction may affect the decision to award attorney’s fees. When a court exercises its discretion in this manner, however, its reasons for departing from the general rule should be “faithful to the purposes” of awarding fees under §1447(c). Fogerty, 510 U. S., at 534, n. 19; see also Milwaukee v. Cement Div., National Gypsum Co., 515 U. S. 189, 196, n. 8 (1995) (“[A]s is always the case when an issue is committed to judicial discretion, the judge’s decision must be supported by a circumstance that has relevance to the issue at hand”). * * * The District Court denied the Martins’ request for attorney’s fees because Franklin had an objectively reasonable basis for removing this case to federal court. The Court of Appeals considered it a “close question,” 393 F. 3d, at 1148, but agreed that the grounds for removal were reasonable. Because the Martins do not dispute the reasonableness of Franklin’s removal arguments, we need not review the lower courts’ decision on this point. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. * In Fogerty, we did not identify a standard under which fees should be awarded. But that decision did not depart from Zipes because we granted certiorari to decide only whether the same standard applied to prevailing plaintiffs and prevailing defendants. See Fogerty v. Fantasy, Inc., 510 U. S. 517, 521 (1994). Having decided this question and rejected the claim that fee shifting should be automatic, we remanded to the Court of Appeals to consider the appropriate test in the first instance. Id., at 534–535.
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547.US.71
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Respondent Dabit filed a private securities fraud class action in federal court, invoking diversity jurisdiction to advance his state-law claims that petitioner, his former employer, fraudulently manipulated stock prices, causing him and other brokers and their clients to keep their overvalued securities. The District Court dismissed his amended complaint, finding his claims pre-empted by title I of the Securities Litigation Uniform Standards Act of 1998 (SLUSA), which provides that no “covered class action” based on state law and alleging “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security” “may be maintained in any State or Federal court by any private party.” 15 U. S. C. §78bb(f)(1)(A). Vacating the judgment, the Second Circuit concluded that, to the extent the complaint alleged that brokers were fraudulently induced, not to sell or purchase, but to retain or delay selling, it fell outside SLUSA’s pre-emptive scope. Held: The background, text, and purpose of SLUSA’s pre-emption provision demonstrate that SLUSA pre-empts state-law holder class-action claims of the kind Dabit alleges. Pp. 5–17. (a) The magnitude of the federal interest in protecting the integrity and efficiency of the national securities market cannot be overstated. The Securities Act of 1933 and the Securities Exchange Act of 1934 (1934 Act) anchor federal regulation of vital elements of this Nation’s economy. Securities and Exchange Commission (SEC) Rule 10b–5, which was promulgated pursuant to §10(b) of the 1934 Act, is an important part of that regulatory scheme, and, like §10(b), prohibits deception, misrepresentation, and fraud “in connection with the purchase or sale” of a security. When, in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, this Court limited the Rule 10b–5 private right of action to plaintiffs who were themselves purchasers or sellers, it relied on the widespread recognition that suits by nonpurchasers and nonsellers present a special risk of vexatious litigation that could “frustrate or delay normal business activity,” id., at 740. Pp. 5–8. (b) Similar policy considerations prompted Congress to adopt legislation (Reform Act) targeted at perceived abuses of class actions—e.g., nuisance filings and vexatious discovery requests—but this effort prompted members of the plaintiffs’ bar to avoid the federal forum altogether. To stem the shift of class actions from federal to state courts, Congress enacted SLUSA. Pp. 8–10. (c) Both the class and the securities here are “covered” within SLUSA’s meaning, and the complaint alleges misrepresentations and omissions of material facts. The only disputed issue is whether the alleged wrongdoing was “in connection with the purchase or sale” of securities. Dabit’s narrow reading would pre-empt only those actions in which Blue Chip Stamps’ purchaser-seller requirement is met. Insofar as that argument assumes that the Blue Chip Stamps rule stems from Rule 10b–5’s text, it must be rejected, for the Court relied on “policy considerations” in adopting that limitation, and it purported to define the scope of a private right of action under Rule 10b–5, not to define “in connection with the purchase or sale.” When this Court has sought to give meaning to that phrase in the §10(b) and Rule 10b–5 context, it has broadly required that the alleged fraud “coincide” with a securities transaction, an interpretation that comports with the SEC’s longstanding views. Congress can hardly have been unaware of this broad construction when it imported the phrase into SLUSA. Where judicial interpretations have settled a statutory provision’s meaning, repeating the same language in a new statute indicates the intent to incorporate the judicial interpretations as well. That presumption is particularly apt here, because Congress not only used §10(b)’s and Rule 10b–5’s words, but used them in another provision appearing in the same statute as §10(b). The presumption that Congress envisioned a broad construction also follows from the particular concerns that culminated in SLUSA’s enactment, viz., preventing state private securities class-action suits from frustrating the Reform Act’s objectives. A narrow construction also would give rise to wasteful, duplicative litigation in state and federal courts. The presumption that “Congress does not cavalierly pre-empt state-law causes of action,” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485, has less force here because SLUSA does not pre-empt any cause of action. It simply denies the use of the class-action device to vindicate certain claims. Moreover, tailored exceptions to SLUSA’s pre-emptive command—for, e.g., state agency enforcement proceedings—demonstrate that Congress did not act cavalierly. Finally, federal, not state, law has long been the principal vehicle for asserting class-action securities fraud claims. Pp. 10–16. (d) Dabit’s holder class action is distinguishable from a typical Rule 10b–5 class action only in that it is brought by holders rather than sellers or purchasers. That distinction is irrelevant for SLUSA pre-emption purposes. The plaintiffs’ identity does not determine whether the complaint alleges the requisite fraud, and the alleged misconduct here—fraudulent manipulation of stock prices—unquestionably qualifies as a fraud “in connection with the purchase or sale” of securities as the phrase is defined in SEC v. Zandford, 535 U. S. 813, 820, and United States v. O’Hagan, 521 U. S. 642, 651. Pp. 16–17. 395 F. 3d 25, vacated and remanded. Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
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Title I of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) provides that “[n]o covered class action” based on state law and alleging “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security” “may be maintained in any State or Federal court by any private party.” §101(b), 112 Stat. 3227 (codified at 15 U. S. C. § 78bb(f)(1)(A)). In this case the Second Circuit held that SLUSA only pre-empts state-law class-action claims brought by plaintiffs who have a private remedy under federal law. 395 F. 3d 25 (2005). A few months later, the Seventh Circuit ruled to the contrary, holding that the statute also pre-empts state-law class-action claims for which federal law provides no private remedy. Kircher v. Putnam Funds Trust, 403 F. 3d 478 (2005). The background, the text, and the purpose of SLUSA’s pre-emption provision all support the broader interpretation adopted by the Seventh Circuit. I Petitioner Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch), is an investment banking firm that offers research and brokerage services to investors. Suspicious that the firm’s loyalties to its investment banking clients had produced biased investment advice, the New York attorney general in 2002 instituted a formal investigation into Merrill Lynch’s practices. The investigation sparked a number of private securities fraud actions, this one among them.[Footnote 1] Respondent, Shadi Dabit, is a former Merrill Lynch broker. He filed this class action in the United States District Court for the Western District of Oklahoma on behalf of himself and all other former or current brokers who, while employed by Merrill Lynch, purchased (for themselves and for their clients) certain stocks between December 1, 1999, and December 31, 2000. See App. 27a–46a. Rather than rely on the federal securities laws, Dabit invoked the District Court’s diversity jurisdiction and advanced his claims under Oklahoma state law. The gist of Dabit’s complaint was that Merrill Lynch breached the fiduciary duty and covenant of good faith and fair dealing it owed its brokers by disseminating misleading research and thereby manipulating stock prices.[Footnote 2] Dabit’s theory was that Merrill Lynch used its misinformed brokers to enhance the prices of its investment banking clients’ stocks: The research analysts, under management’s direction, allegedly issued overly optimistic appraisals of the stocks’ value; the brokers allegedly relied on the analysts’ reports in advising their investor clients and in deciding whether or not to sell their own holdings; and the clients and brokers both continued to hold their stocks long beyond the point when, had the truth been known, they would have sold. The complaint further alleged that when the truth was actually revealed (around the time the New York attorney general instituted his investigation), the stocks’ prices plummeted. Dabit asserted that Merrill Lynch’s actions damaged the class members in two ways: The misrepresentations and manipulative tactics caused them to hold onto overvalued securities, and the brokers lost commission fees when their clients, now aware that they had made poor investments, took their business elsewhere. In July 2002, Merrill Lynch moved to dismiss Dabit’s complaint. It argued, first, that SLUSA pre-empted the action and, second, that the claims alleged were not cognizable under Oklahoma law. The District Court indicated that it was “not impressed by” the state-law argument, but agreed that the federal statute pre-empted at least some of Dabit’s claims. Id., at 49a–50a. The court noted that the complaint alleged both “claims and damages based on wrongfully-induced purchases” and “claims and damages based on wrongfully-induced holding.” Ibid. While the “holding” claims, the court suggested, might not be pre-empted, the “purchasing” claims certainly were. The court dismissed the complaint with leave to amend to give Dabit the opportunity to untangle his “hopeless mélange of purchase-related and holding-related assertions.” Ibid. (punctuation added). Dabit promptly filed an amended complaint that omitted all direct references to purchases. What began as a class of brokers who “purchased” the subject securities during the class period became a class of brokers who “owned and continued to own” those securities. See id., at 52a. Meanwhile, dozens of other suits, based on allegations similar to Dabit’s, had been filed against Merrill Lynch around the country on both federal- and state-law theories of liability. The Judicial Panel on Multidistrict Litigation transferred all of those cases, along with this one, to the United States District Court for the Southern District of New York for consolidated pretrial proceedings. Merrill Lynch then filed its second motion to dismiss Dabit’s complaint. Senior Judge Milton Pollack granted the motion on the ground that the claims alleged fell “squarely within SLUSA’s ambit.” In re Merrill Lynch & Co., Inc., 2003 WL 1872820, *1 (Apr. 10, 2003). The Court of Appeals for the Second Circuit, however, vacated the judgment and remanded for further proceedings. 395 F. 3d, at 51. It concluded that the claims asserted by holders did not allege fraud “in connection with the purchase or sale” of securities under SLUSA. Although the court agreed with Merrill Lynch that that phrase, as used in other federal securities laws, has been defined broadly by this Court, it held that Congress nonetheless intended a narrower meaning here—one that incorporates the “standing” limitation on private federal securities actions adopted in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975). Under the Second Circuit’s analysis, fraud is only “in connection with the purchase or sale” of securities, as used in SLUSA, if it is alleged by a purchaser or seller of securities. Thus, to the extent that the complaint in this action alleged that brokers were fraudulently induced, not to sell or purchase, but to retain or delay selling their securities, it fell outside SLUSA’s pre-emptive scope.[Footnote 3] After determining that the class defined in Dabit’s amended complaint did not necessarily exclude purchasers, the panel remanded with instructions that the pleading be dismissed without prejudice. The court’s order would permit Dabit to file another amended complaint that defines the class to exclude “claimants who purchased in connection with the fraud and who therefore could meet the standing requirement” for a federal damages action, and to include only those “who came to hold [a Merrill Lynch] stock before any relevant misrepresentation.” 395 F. 3d, at 45–46. Under the Second Circuit’s analysis, a class action so limited could be sustained under state law. For the reasons that follow, we disagree. II The magnitude of the federal interest in protecting the integrity and efficient operation of the market for nationally traded securities cannot be overstated. In response to the sudden and disastrous collapse in prices of listed stocks in 1929, and the Great Depression that followed, Congress enacted the Securities Act of 1933 (1933 Act), 48 Stat. 74, and the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 881. Since their enactment, these two statutes have anchored federal regulation of vital elements of our economy. Securities and Exchange Commission (SEC) Rule 10b–5, 17 CFR §240.10b–5 (2005), promulgated in 1942 pursuant to §10(b) of the 1934 Act, 15 U. S. C. §78j(b), is an important part of that regulatory scheme. The Rule, like §10(b) itself,[Footnote 4] broadly prohibits deception, misrepresentation, and fraud “in connection with the purchase or sale of any security.”[Footnote 5] The SEC has express statutory authority to enforce the Rule. See 15 U. S. C. §78u (2000 ed. and Supp. III). Although no such authority is expressly granted to private individuals injured by securities fraud, in 1946 Judge Kirkpatrick of the United States District Court for the Eastern District of Pennsylvania, relying on “the general purpose” of the Rule, recognized an implied right of action thereunder. Kardon v. National Gypsum Co., 69 F. Supp. 512, 514. His holding was adopted by an “overwhelming consensus of the District Courts and Courts of Appeals,” Blue Chip Stamps, 421 U. S., at 730, and endorsed by this Court in Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6 (1971). A few years after Kardon was decided, the Court of Appeals for the Second Circuit limited the reach of the private right of action under Rule 10b–5. In Birnbaum v. Newport Steel Corp., 193 F. 2d 461 (1952), a panel composed of Chief Judge Swan and Judges Augustus and Learned Hand upheld the dismissal of a suit brought on behalf of a corporation and a class of its stockholders alleging that fraud “in connection with” a director’s sale of his controlling block of stock to third parties violated Rule 10b–5. The court held that the Rule could only be invoked by a purchaser or seller of securities to remedy fraud associated with his or her own sale or purchase of securities, and did not protect those who neither purchased nor sold the securities in question but were instead injured by corporate insiders’ sales to third parties. Id., at 464. While the Birnbaum court did not question the plaintiffs’ “standing” to enforce Rule 10b–5, later cases treated its holding as a standing requirement. See Eason v. General Motors Acceptance Corp., 490 F. 2d 654, 657 (CA7 1973). By the time this Court first confronted the question, literally hundreds of lower court decisions had accepted “Birnbaum’s conclusion that the plaintiff class for purposes of §10(b) and Rule 10b–5 private damages actions is limited to purchasers and sellers.” Blue Chip Stamps, 421 U. S., at 731–732. Meanwhile, however, cases like Bankers Life & Casualty Co. had interpreted the coverage of the Rule more broadly to prohibit, for example, “deceptive practices touching [a victim’s] sale of securities as an investor.” 404 U. S., at 12–13 (emphasis added); see Eason, 490 F. 2d, at 657 (collecting cases). The “judicial oak which ha[d] grown from little more than a legislative acorn,” as then-Justice Rehnquist described the rules governing private Rule 10b–5 actions, Blue Chip Stamps, 421 U. S., at 737, had thus developed differently from the law defining what constituted a substantive violation of Rule 10b–5. Ultimately, the Court had to decide whether to permit private parties to sue for any violation of Rule 10b–5 that caused them harm, or instead to limit the private remedy to plaintiffs who were themselves purchasers or sellers. Relying principally on “policy considerations” which the Court viewed as appropriate in explicating a judicially crafted remedy, ibid., and following judicial precedent rather than “the many commentators” who had criticized the Birnbaum rule as “an arbitrary restriction which unreasonably prevents some deserving plaintiffs from recovering damages,” 421 U. S., at 738, the Court in Blue Chip Stamps chose to limit the private remedy. The main policy consideration tipping the scales in favor of precedent was the widespread recognition that “litigation under Rule 10b–5 presents a danger of vexatiousness different in degree and in kind from that which accompanies litigation in general.” Id., at 739. Even weak cases brought under the Rule may have substantial settlement value, the Court explained, because “[t]he very pendency of the lawsuit may frustrate or delay normal business activity.” Id., at 740. Cabining the private cause of action by means of the purchaser-seller limitation would, in the Court’s view, minimize these ill effects. The limitation of course had no application in Government enforcement actions brought pursuant to Rule 10b–5. See id., at 751, n. 14. III Policy considerations similar to those that supported the Court’s decision in Blue Chip Stamps prompted Congress, in 1995, to adopt legislation targeted at perceived abuses of the class-action vehicle in litigation involving nationally traded securities. While acknowledging that private securities litigation was “an indispensable tool with which defrauded investors can recover their losses,” the House Conference Report accompanying what would later be enacted as the Private Securities Litigation Reform Act of 1995 (Reform Act), 109 Stat. 737 (codified at 15 U. S. C. §§77z–1 and 78u–4), identified ways in which the class action device was being used to injure “the entire U. S. economy.” H. R. Rep. No. 104–369, p. 31 (1995). According to the Report, nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests, and “manipulation by class action lawyers of the clients whom they purportedly represent” had become rampant in recent years. Ibid. Proponents of the Reform Act argued that these abuses resulted in extortionate settlements, chilled any discussion of issuers’ future prospects, and deterred qualified individuals from serving on boards of directors. Id., at 31–32. Title I of the Reform Act, captioned “Reduction of Abusive Litigation,” represents Congress’ effort to curb these perceived abuses. Its provisions limit recoverable damages and attorney’s fees, provide a “safe harbor” for forward-looking statements, impose new restrictions on the selection of (and compensation awarded to) lead plaintiffs, mandate imposition of sanctions for frivolous litigation, and authorize a stay of discovery pending resolution of any motion to dismiss. See 15 U. S. C. §78u–4. Title I also imposes heightened pleading requirements in actions brought pursuant to §10(b) and Rule 10b–5; it “insists that securities fraud complaints ‘specify’ each misleading statement; that they set forth the facts ‘on which [a] belief’ that a statement is misleading was ‘formed’; and that they ‘state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.’ ” Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 345 (2005) (quoting 15 U. S. C. §§78u–4(b)(1), (2)). The effort to deter or at least quickly dispose of those suits whose nuisance value outweighs their merits placed special burdens on plaintiffs seeking to bring federal securities fraud class actions. But the effort also had an unintended consequence: It prompted at least some members of the plaintiffs’ bar to avoid the federal forum altogether. Rather than face the obstacles set in their path by the Reform Act, plaintiffs and their representatives began bringing class actions under state law, often in state court. The evidence presented to Congress during a 1997 hearing to evaluate the effects of the Reform Act suggested that this phenomenon was a novel one; state-court litigation of class actions involving nationally traded securities had previously been rare. See H. R. Rep. No. 105–640, p. 10 (1998); S. Rep. No. 105–182, pp. 3–4 (1998). To stem this “shif[t] from Federal to State courts” and “prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives of” the Reform Act, SLUSA §§2(2), (5), 112 Stat. 3227, Congress enacted SLUSA. IV The core provision of SLUSA reads as follows:[Footnote 6] “Class Action Limitations.—No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging— “(A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or “(B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.” Id., at 3230 (codified as amended at 15 U. S. C. §78bb(f)(1)).[Footnote 7] A “covered class action” is a lawsuit in which damages are sought on behalf of more than 50 people.[Footnote 8] A “covered security” is one traded nationally and listed on a regulated national exchange.[Footnote 9] Respondent does not dispute that both the class and the securities at issue in this case are “covered” within the meaning of the statute, or that the complaint alleges misrepresentations and omissions of material facts. The only disputed issue is whether the alleged wrongdoing was “in connection with the purchase or sale” of securities. Respondent urges that the operative language must be read narrowly to encompass (and therefore pre-empt) only those actions in which the purchaser-seller requirement of Blue Chip Stamps is met. Such, too, was the Second Circuit’s view. But insofar as the argument assumes that the rule adopted in Blue Chip Stamps stems from the text of Rule 10b–5—specifically, the “in connection with” language, it must be rejected. Unlike the Birnbaum court, which relied on Rule 10b–5’s text in crafting its purchaser-seller limitation, this Court in Blue Chip Stamps relied chiefly, and candidly, on “policy considerations” in adopting that limitation. 421 U. S., at 737. The Blue Chip Stamps Court purported to define the scope of a private right of action under Rule 10b–5—not to define the words “in connection with the purchase or sale.” Id., at 749 (“No language in either [§10(b) or Rule 10b–5] speaks at all to the contours of a private cause of action for their violation”). Any ambiguity on that score had long been resolved by the time Congress enacted SLUSA. See United States v. O’Hagan, 521 U. S. 642, 656, 664 (1997); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 285 (1992) (O’Connor, J., concurring in part and concurring in judgment); id., at 289–290 (Scalia, J., concurring in judgment); United States v. Naftalin, 441 U. S. 768, 774, n. 6 (1979); see also 395 F. 3d, at 39 (acknowledging that “[t]he limitation on standing to bring [a] private suit for damages for fraud in connection with the purchase or sale of securities is unquestionably a distinct concept from the general statutory and regulatory prohibition on fraud in connection with the purchase or sale of securities”). Moreover, when this Court has sought to give meaning to the phrase in the context of §10(b) and Rule 10b–5, it has espoused a broad interpretation. A narrow construction would not, as a matter of first impression, have been unreasonable; one might have concluded that an alleged fraud is “in connection with” a purchase or sale of securities only when the plaintiff himself was defrauded into purchasing or selling particular securities. After all, that was the interpretation adopted by the panel in the Birnbaum case. See 193 F. 2d, at 464. But this Court, in early cases like Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6 (1971), and most recently in SEC v. Zandford, 535 U. S. 813, 820, 822 (2002), has rejected that view. Under our precedents, it is enough that the fraud alleged “coincide” with a securities transaction—whether by the plaintiff or by someone else. See O’Hagan, 521 U. S., at 651. The requisite showing, in other words, is “deception ‘in connection with the purchase or sale of any security,’ not deception of an identifiable purchaser or seller.” Id., at 658. Notably, this broader interpretation of the statutory language comports with the longstanding views of the SEC. See Zandford, 535 U. S., at 819–820.[Footnote 10] Congress can hardly have been unaware of the broad construction adopted by both this Court and the SEC when it imported the key phrase—“in connection with the purchase or sale”—into SLUSA’s core provision. And when “judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998); see Cannon v. University of Chicago, 441 U. S. 677, 696–699 (1979). Application of that presumption is particularly apt here; not only did Congress use the same words as are used in §10(b) and Rule 10b–5, but it used them in a provision that appears in the same statute as §10(b). Generally, “identical words used in different parts of the same statute are . . . presumed to have the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. __, __ (2005) (slip op., at 11). The presumption that Congress envisioned a broad construction follows not only from ordinary principles of statutory construction but also from the particular concerns that culminated in SLUSA’s enactment. A narrow reading of the statute would undercut the effectiveness of the 1995 Reform Act and thus run contrary to SLUSA’s stated purpose, viz., “to prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives” of the 1995 Act. SLUSA §2(5), 112 Stat. 3227. As the Blue Chip Stamps Court observed, class actions brought by holders pose a special risk of vexatious litigation. 421 U. S., at 739. It would be odd, to say the least, if SLUSA exempted that particularly troublesome subset of class actions from its pre-emptive sweep. See Kircher, 403 F. 3d, at 484. Respondent’s preferred construction also would give rise to wasteful, duplicative litigation. Facts supporting an action by purchasers under Rule 10b–5 (which must proceed in federal court if at all) typically support an action by holders as well, at least in those States that recognize holder claims. The prospect is raised, then, of parallel class actions proceeding in state and federal court, with different standards governing claims asserted on identical facts. That prospect, which exists to some extent in this very case,[Footnote 11] squarely conflicts with the congressional preference for “national standards for securities class action lawsuits involving nationally traded securities.” SLUSA §2(5), 112 Stat. 3227.[Footnote 12] In concluding that SLUSA pre-empts state-law holder class-action claims of the kind alleged in Dabit’s complaint, we do not lose sight of the general “presum[ption] that Congress does not cavalierly pre-empt state-law causes of action.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996). But that presumption carries less force here than in other contexts because SLUSA does not actually pre-empt any state cause of action. It simply denies plaintiffs the right to use the class action device to vindicate certain claims. The Act does not deny any individual plaintiff, or indeed any group of fewer than 50 plaintiffs, the right to enforce any state-law cause of action that may exist. Moreover, the tailored exceptions to SLUSA’s pre-emptive command demonstrate that Congress did not by any means act “cavalierly” here. The statute carefully exempts from its operation certain class actions based on the law of the State in which the issuer of the covered security is incorporated, actions brought by a state agency or state pension plan, actions under contracts between issuers and indenture trustees, and derivative actions brought by shareholders on behalf of a corporation. 15 U. S. C. §§78bb(f)(3)(A)–(C), (f)(5)(C). The statute also expressly preserves state jurisdiction over state agency enforcement proceedings. §78bb(f)(4). The existence of these carve-outs both evinces congressional sensitivity to state prerogatives in this field and makes it inappropriate for courts to create additional, implied exceptions. Finally, federal law, not state law, has long been the principal vehicle for asserting class-action securities fraud claims. See, e.g., H. R. Conf. Rep. No. 105–803, p. 14 (1998) (“Prior to the passage of the Reform Act, there was essentially no significant securities class action litigation brought in State court”).[Footnote 13] More importantly, while state-law holder claims were theoretically available both before and after the decision in Blue Chip Stamps, the actual assertion of such claims by way of class action was virtually unheard of before SLUSA was enacted; respondent and his amici have identified only one pre-SLUSA case involving a state-law class action asserting holder claims.[Footnote 14] This is hardly a situation, then, in which a federal statute has eliminated a historically entrenched state-law remedy. Cf. Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) (observing that a “long history” of state-law tort remedy “add[ed] force” to the presumption against pre-emption). V The holder class action that respondent tried to plead, and that the Second Circuit envisioned, is distinguishable from a typical Rule 10b–5 class action in only one respect: It is brought by holders instead of purchasers or sellers. For purposes of SLUSA pre-emption, that distinction is irrelevant; the identity of the plaintiffs does not determine whether the complaint alleges fraud “in connection with the purchase or sale” of securities. The misconduct of which respondent complains here—fraudulent manipulation of stock prices—unquestionably qualifies as fraud “in connection with the purchase or sale” of securities as the phrase is defined in Zandford, 535 U. S., at 820, 822, and O’Hagan, 521 U. S., at 651. The judgment of the Court of Appeals for the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 Merrill Lynch eventually settled its dispute with the New York attorney general. Footnote 2 The complaint alleged, for example, that the prices of the subject stocks were “artificially inflated as a result of the manipulative efforts” of Merrill Lynch, and that Merrill Lynch, “acting as a central nerve center in the manipulation of various stocks … , perpetrated this stock manipulation through a variety of deceptive devices, artifices, and tactics that are the hallmarks of stock manipulation.” App. 28a–29a. Footnote 3 The Court of Appeals also concluded that Dabit’s lost commission claims escaped pre-emption under SLUSA because they did not “allege fraud that ‘coincide[s]’ with the sale or purchase of a security.” 395 F. 3d, at 47 (quoting SEC v. Zandford, 535 U. S. 813, 825 (2002)). That determination is not before this Court for review. Footnote 4 Section 10(b) provides as follows: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— “(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. §78j(b). Footnote 5 The text of the Rule is as follows: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, “in connection with the purchase or sale of any security.” 17 CFR §240.10b–5 (2005). Footnote 6 SLUSA amends the 1933 Act and the 1934 Act in substantially identical ways. For convenience and because they are more pertinent here, we quote the amendments to the 1934 Act. Footnote 7 Another key provision of the statute makes all “covered class actions” filed in state court removable to federal court. 112 Stat. 3230 (codified at 15 U. S. C. §78bb(f)(2)). Footnote 8 “The term ‘covered class action’ means— “(i) any single lawsuit in which— “(I) damages are sought on behalf of more than 50 persons or prospective class members, and questions of law or fact common to those persons or members of the prospective class, without reference to issues of individualized reliance on an alleged misstatement or omission, predominate over any questions affecting only individual persons or members; or “(II) one or more named parties seek to recover damages on a representative basis on behalf of themselves and other unnamed parties similarly situated, and questions of law or fact common to those persons or members of the prospective class predominate over any questions affecting only individual persons or members; or “(ii) any group of lawsuits filed in or pending in the same court and involving common questions of law or fact, in which— “(I) damages are sought on behalf of more than 50 persons; and “(II) the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose.” 112 Stat. 3232 (codified at 15 U. S. C. §78bb(f)(5)(B)). Footnote 9 “The term ‘covered security’ means a security that satisfies the standards for a covered security specified in paragraph (1) or (2) of section 18(b) of the Securities Act of 1933, at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred… .” 112 Stat. 3232 (codified at 15 U. S. C. §78bb(f)(5)(E)). Section 18(b) of the 1933 Act in turn defines “covered security” to include securities traded on a national exchange. §77r(b). Footnote 10 In Zandford, we observed that the SEC has consistently “maintained that a broker who accepts payment for securities that he never intends to deliver, or who sells customer securities with intent to misappropriate the proceeds, violates §10(b) and Rule 10b–5.” 535 U. S., at 819. Here, too, the SEC supports a broad reading of the “in connection with” language. Footnote 11 See 2003 WL 1872820, *1 (SDNY, Apr. 10, 2003) (observing that Dabit’s holder claims rested “on the very same alleged series of transactions and occurrences asserted in the federal securities actions” filed against Merrill Lynch). Footnote 12 See H. R. Rep. No. 105–640, p. 10 (1998) (the “solution” to circumvention of the Reform Act “is to make Federal court the exclusive venue for securities fraud class action litigation”); S. Rep. No. 105–182, p. 3 (1998) (identifying “the danger of maintaining differing federal and state standards of liability for nationally-traded securities”). Footnote 13 Respondent points out that the Court in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975), identified as a factor mitigating any unfairness caused by adoption of the purchaser-seller requirement that “remedies are available to nonpurchasers and nonsellers under state law.” Id., at 738, n. 9. He argues that this supports a narrow construction of SLUSA’s pre-emption provision. But we do not here revisit the Blue Chip Stamps Court’s understanding of the equities involved in limiting the availability of private remedies under federal law; we are concerned instead with Congress’ intent in adopting a pre-emption provision, the evident purpose of which is to limit the availability of remedies under state law. Footnote 14 See Brief for Respondent 5 (citing Weinberger v. Kendrick, 698 F. 2d 61, 78 (CA2 1982) (approving a settlement that included holder claims brought pursuant to New York law)); see also Tr. of Oral Arg. 34–35.
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547.US.189
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Petitioner insurance company filed this admiralty suit against respondent County seeking damages resulting from a collision between a malfunctioning County drawbridge and a boat insured by petitioner. Granting the County summary judgment, the District Court recognized that Eleventh Amendment immunity from suit does not extend to counties, but relied on Circuit precedent to conclude that sovereign immunity extends to counties and municipalities that, as here, exercise power delegated from the State. The Eleventh Circuit, which was bound by that same precedent, affirmed. It acknowledged that the County did not assert an Eleventh Amendment immunity defense, which would fail because, under other Circuit precedent, the County did not qualify as an “arm of the State.” The Court of Appeals nonetheless concluded that common law has carved out a “residual immunity” that protects political subdivisions such as the County from suit. Held: An entity that does not qualify as an “arm of the State” for Eleventh Amendment purposes cannot assert sovereign immunity as a defense to an admiralty suit. Pp. 3–7. (a) Immunity from suit “is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today … except as altered by the plan of the Convention or certain constitutional Amendments.” Alden v. Maine, 527 U. S. 706, 713. Thus, the phrase “ ‘Eleventh Amendment immunity’ … is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Id., at 713. Because preratification sovereignty is the source of immunity from suit, only States and arms of the State possess immunity from suits authorized by federal law. See, e.g., id., at 740. Accordingly, sovereign immunity does not extend to counties, see, e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 401, and n. 19, even when they “exercise a ‘slice of state power,’ ” id., at 401. The County argues unconvincingly that this Court has recognized a distinct “residual” immunity that permits adoption of a broader test than it applies in the Eleventh Amendment context to determine whether an entity is acting as an arm of the State entitled to immunity. The Court has referenced only the States’ “residuary and inviolable sovereignty” that survived the Constitution. See, e.g., Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 751. Because the County may claim immunity neither based upon its identity as a county nor under an expansive arm-of-the-State test, it is subject to suit unless it was acting as an arm of the State, as delineated by this Court’s precedents, in operating the drawbridge. E.g., Alden, supra, at 756. The County conceded below that it was not entitled to Eleventh Amendment immunity, and both the County and the Eleventh Circuit appear to have understood this concession to be based on the County’s failure to qualify as an “arm of the State” under this Court’s precedent. Moreover, certiorari was granted in this case premised on the conclusion that the County is not an arm of the State for Eleventh Amendment purposes, and this Court presumes that to be the case. The County’s concession and this Court’s presumption are dispositive. Pp. 3–5. (b) The County’s alternative argument that the Court should recognize a distinct sovereign immunity against in personam admiralty suits that bars cases arising from a county’s exercise of core state functions with regard to navigable waters is rejected. Such recognition cannot be reconciled with the Court’s precedents, which applied the general principle that sovereign immunity does not bar a suit against a city to an admiralty suit as early as Workman v. New York City, 179 U. S. 552, 570. The Court disagrees with the County’s contention that Workman does not govern the instant case under Ex parte New York, 256 U. S. 490, 498, where, in extending sovereign immunity beyond cases “in law or equity” to admiralty cases, the Court concluded that Workman involved only substantive admiralty law, not the power of the Court to exercise jurisdiction over a particular defendant. But Workman did so precisely because the Court there held that admiralty courts have jurisdiction over municipal corporations. See 179 U. S., at 565. The Workman Court accordingly distinguished between the question before it—whether admiralty courts may, notwithstanding state law, “redress a wrong committed by one over whom such courts have adequate jurisdiction,” id., at 566, such as a municipal corporation—and the question not before it, but before the Court in Ex parte New York—whether admiralty courts may “give redress in a case where jurisdiction over the person or property cannot be exerted,” 179 U. S., at 566. In the former circumstance, the court should apply general admiralty principles, while in the latter the court lacks the power to do so. See id., at 570; Ex parte New York, supra, at 499–500, 502–503. Because here, as in Workman and in contrast to Ex parte New York, the defendant was an entity generally within the District Court’s jurisdiction, Ex parte New York is inapposite, and Workman compels the conclusion that the County is unprotected by sovereign immunity. Pp. 5–7. 129 Fed Appx. 602, reversed. Thomas, J., delivered the opinion for a unanimous Court.
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Petitioner Northern Insurance Company of New York (Northern) filed suit against respondent Chatham County, Georgia (County), in the United States District Court for the Southern District of Georgia, seeking damages resulting from an alleged tort committed by employees of the County. The District Court granted the County’s motion for summary judgment on the ground that the suit was barred by sovereign immunity. Relying on Circuit precedent, the Court of Appeals for the Eleventh Circuit affirmed. We granted certiorari to consider “[w]hether an entity that does not qualify as an ‘arm of the State’ for Eleventh Amendment purposes can nonetheless assert sovereign immunity as a defense to an admiralty suit.” 546 U. S. ___ (2005). I The County owns, operates, and maintains the Causton Bluff Bridge, a drawbridge over the Wilmington River. On October 6, 2002, James Ludwig requested that the bridge be raised to allow his boat to pass. The bridge malfunctioned, a portion falling and colliding with Mr. Ludwig’s boat. As a result of the collision, Mr. Ludwig and his wife incurred damages in excess of $130,000. The Ludwigs submitted a claim for those damages to their insurer, Northern, which paid in accordance with the terms of their insurance policy. Northern then sought to recover its costs by filing suit in admiralty against the County in the District Court. The County sought summary judgment, arguing that Northern’s claims were barred by sovereign immunity. The County conceded that Eleventh Amendment immunity did not extend to counties, but nonetheless contended that it was immune under “the universal rule of state immunity from suit without the state’s consent.” Defendant’s Brief in Support of Motion for Summary Judgment, Case No. CV403–099, App. 33a. The District Court agreed, relying on Broward County v. Wickman, 195 F. 2d 614 (CA5 1952), to conclude that sovereign immunity extends to counties and municipalities that, as here, “exercis[e] power delegated from the State.” Zurich Ins. Co. v. Chatham County, No. CV403–99, App. 77a. The Eleventh Circuit, which was bound to follow Wickman as Circuit precedent, affirmed.[Footnote 1] The Court of Appeals acknowledged that the County did not assert an Eleventh Amendment immunity defense, which would fail because, under Circuit precedent, the County did not qualify as an arm of the State. Zurich Ins. Co. v. Chatham County, No. 04–13308 (Jan. 28, 2005), App. 83a, n. 1, judgt. order reported at 129 Fed. Appx. 602. The Court of Appeals nonetheless concluded that “common law has carved out a ‘residual immunity,’ which would protect a political subdivision such as Chatham County from suit.” App. 83a. We granted certiorari to review the judgment of the Court of Appeals. 546 U. S. ___ (2005). II This Court’s cases have recognized that the immunity of States from suit “is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today … except as altered by the plan of the Convention or certain constitutional Amendments.” Alden v. Maine, 527 U. S. 706, 713 (1999); see Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55–56 (1996); Principality of Monaco v. Mississippi, 292 U. S. 313, 322–323 (1934). Consistent with this recognition, which no party asks us to reexamine today, we have observed that the phrase “ ‘Eleventh Amendment immunity’ … is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Alden, supra, at 713. A consequence of this Court’s recognition of preratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law. See Alden, supra, at 740; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977). Accordingly, this Court has repeatedly refused to extend sovereign immunity to counties. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 401 (1979); id., at 401, n. 19 (gathering cases); Workman v. New York City, 179 U. S. 552, 565 (1900); Lincoln County v. Luning, 133 U. S. 529, 530 (1890). See also Jinks v. Richland County, 538 U. S. 456, 466 (2003) (“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit”). This is true even when, as respondent alleges here, “such entities exercise a ‘slice of state power.’ ” Lake Country Estates, supra, at 401. The County argues that this Court’s cases recognize a distinct “residual” immunity that permits adoption of a broader test than we apply in the Eleventh Amendment context to determine whether an entity is acting as an arm of the State and is accordingly entitled to immunity.[Footnote 2] Brief for Respondent 28. But this Court’s use of that term does not suggest the County’s conclusion; instead, this Court has referenced only the States’ “residuary and inviolable sovereignty” that survived the Constitution. See The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison); Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 751 (2002). Because the County may claim immunity neither based upon its identity as a county nor under an expansive arm-of-the-State test, the County is subject to suit unless it was acting as an arm of the State, as delineated by this Court’s precedents, in operating the drawbridge. Alden, supra, at 756; Lake Country Estates, supra, at 400–401. The County conceded below that it was not entitled to Eleventh Amendment immunity, and both the County and the Court of Appeals appear to have understood this concession to be based on the County’s failure to qualify as an arm of the State under our precedent. See App. 83a, n. 1 (recognizing that the County rightly disclaimed an Eleventh Amendment immunity defense because such a defense would be inconsistent with the court’s holding in Vierling v. Celebrity Cruises, Inc., 339 F. 3d 1309 (CA11 2003), that the Broward County Port Authority was not an arm of the State); Brief of Appellee Chatham County in No. 04–13308DD (CA11), p. 13 (distinguishing Vierling in part because it dealt with the question of Eleventh Amendment immunity); see also Brief for Respondent 8 (implicitly conceding that respondent is not an arm of the State under our Eleventh Amendment jurisprudence). Moreover, the question on which we granted certiorari is premised on the conclusion that the County is not “an ‘arm of the State’ for Eleventh Amendment purposes,” 546 U. S. ___ (2005), and we presume that to be the case. Accordingly, the County’s concession and the presumption un- derlying the question on which we granted review are dispositive. As an alternative ground for affirmance, the County asks the Court to recognize a distinct sovereign immunity against in personam admiralty suits that bars cases arising from a county’s exercise of core state functions with regard to navigable waters. Recognition of a distinct immunity in admiralty cases cannot be reconciled with our precedents. Immunity in admiralty, like other sovereign immunity, is simply an application of “the fundamental rule” that “the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given.” Ex parte New York, 256 U. S. 490, 497–500 (1921). Accordingly, this Court has resolved sovereign immunity questions in admiralty by relying upon principles set out in this Court’s sovereign immunity cases, rather than by examining the history or jurisprudence specific to suits in admiralty. See Federal Maritime Comm’n v. South Carolina Ports Authority, supra, at 754–769 (an admiralty suit relying heavily on Alden, supra (plaintiff raised a Fair Labor Standards Act of 1938 claim), and Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996) (plaintiff alleged violation of the Indian Gaming Regulatory Act)). Indeed, the Court applied the general principle that sovereign immunity does not bar a suit against a city to an admiralty suit as early as Workman v. New York City, 179 U. S. 552, which held that such immunity “afforded no reason for denying redress in a court of admiralty for the wrong which … [had] been committed” by the city of New York, id., at 570. The County nonetheless contends—and the Eleventh Circuit, in reliance upon the Fifth Circuit’s analysis in Wickman, held—that the reach of Workman is limited, and that this Court’s decision in Ex parte New York, supra, demonstrates that Workman does not govern the instant case. See Wickman, 195 F. 2d, at 615. We disagree. Ex parte New York extended sovereign immunity beyond cases “in law or equity” to cases in admiralty. As the County points out, Ex parte New York concluded that Workman involved only the substantive law of admiralty, and not the power of the Court to exercise jurisdiction over a particular defendant. Ex parte New York, supra, at 498. But Workman dealt only with the substantive law of admiralty precisely because the Workman Court held that admiralty courts have jurisdiction over municipal corporations. See 179 U. S., at 565 (“[A]s a general rule, municipal corporations, like individuals, may be sued; in other words … they are amenable to judicial process for the purpose of compelling performance of their obligations”). The Workman Court accordingly distinguished between the question before it—whether courts of admiralty may, notwithstanding state law, “redress a wrong committed by one over whom such courts have adequate jurisdiction,” id., at 566, such as a municipal corporation—and the question not before it, but before the Court in Ex parte New York—whether courts of admiralty may “give redress in a case where jurisdiction over the person or property cannot be exerted,” 179 U. S., at 566. In the former circumstance, the court should apply general admiralty principles, while in the latter the court lacks the power to do so. See id., at 570; Ex parte New York, supra, at 499–500, 502–503. Because here, as in Workman and in contrast to Ex parte New York, the defendant was an entity generally within the jurisdiction of the District Court, Ex parte New York is inapposite, and Workman compels the conclusion that the County is unprotected by sovereign immunity. * * * Because the County has failed to demonstrate that it was acting as an arm of the State when it operated the Causton Bluff Bridge, the County is not entitled to immunity from Northern’s suit. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 See Bonner v. Prichard, 661 F. 2d 1206, 1209 (CA11 1981) (en banc) (adopting all decisions of the former Fifth Circuit announced prior to October 1, 1981, as binding precedent in the Eleventh Circuit). Footnote 2 It is unclear whether respondent believes that residual immunity is a common-law immunity that has been unaltered by federal substantive law, see Brief for Respondent 18 (“Chatham County’s sovereign immunity derives from the common law which pre-dates Eleventh Amendment immunity”), or, as the Solicitor General appears to believe, a constitutionally based immunity that is distinguishable from the one drawn from the constitutional structure, see Tr. of Oral Arg. 16 (“What respondent calls residual sovereign immunity . . . is the doctrine of constitutional sovereign immunity”). In either case, it appears that the residual immunity would serve to extend sovereign immunity beyond its preratification scope.
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546.US.517
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At the guilt phase of respondent Guzek’s capital murder trial, his mother was one of two witnesses who testified that he had been with her on the night the crime was committed. He was convicted and sentenced to death. Twice, the Oregon Supreme Court vacated the sentence and ordered new sentencing proceedings, but each time Guzek was again sentenced to death. Upon vacating his sentence for a third time, the State Supreme Court held that the Eighth and Fourteenth Amendments provide Guzek a federal constitutional right to introduce live alibi testimony from his mother at the upcoming resentencing proceeding. After this Court granted certiorari, Guzek filed a motion to dismiss the writ as improvidently granted. Held: 1. Guzek’s motion to dismiss certiorari is denied. This Court does not lack jurisdiction on the ground that, irrespective of federal law, state law gives Guzek the right to introduce his mother’s live testimony. The Court possesses jurisdiction to review state-court determinations that rest upon federal law, 28 U. S. C. §1257(a), and the Oregon Supreme Court based its legal conclusion in relevant part on such law. It pointed out that relevant mitigating evidence under state law refers only to evidence that the Federal Constitution grants a defendant the right to present. And it interpreted the federal admissibility requirement in Lockett v. Ohio, 438 U. S. 586, 604 (plurality opinion), and Green v. Georgia, 442 U. S. 95 (per curiam), to include evidence like the proffered alibi testimony. Nor is this Court willing to dismiss the writ on the ground that irrespective of federal law and of the State Supreme Court’s federal holding, Oregon’s capital-case resentencing statute gives Guzek the right to introduce witnesses who testified at the guilt phase. At most, state law might give him such a right, but “a possible adequate and independent state ground” for a decision does not “bar … reaching the federal questions” where, as here, the State Supreme Court’s decision “quite clearly rested … solely on the Federal Constitution.” California v. Ramos, 463 U. S. 992, 997, n. 7. Pp. 2–5. 2. The Constitution does not prohibit a State from limiting the innocence-related evidence a capital defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial. This Court’s cases have not interpreted the Eighth Amendment as providing such a defendant the right to introduce at sentencing evidence designed to cast “residual doubt” on his guilt of the basic crime of conviction. Franklin v. Lynaugh, 487 U. S. 164, 173, n. 6 (plurality opinion). Lockett v. Ohio, supra, and Green v. Georgia, supra, distinguished. Even if such a right existed, it could not extend so far as to provide Guzek with a right to introduce the evidence at issue. The Eighth Amendment insists upon “ ‘ reliability in the determination that death is the appropriate punishment in a specific case,’ ” Penry v. Lynaugh, 492 U. S. 302, 328, and that a sentencing jury be able “to consider and give effect to mitigating evidence” about the defendant’s “character or record or the circumstances of the offense,” id., at 327–328, but it does not deprive the State of its authority to set reasonable limits on the evidence a defendant can submit, and to control the manner in which it is submitted. Three circumstances, taken together, show that the State has the authority to regulate Guzek’s evidence through exclusion. First, sentencing traditionally concerns how, not whether, a defendant committed the crime, but alibi evidence concerns only whether, not how, he did so. Second, the parties previously litigated the issue to which the evidence is relevant. Thus, the evidence attacks a previously determined matter in a proceeding at which, in principle, that matter is not at issue. The law typically discourages such collateral attacks. Cf. Allen v. McCurry, 449 U. S. 90, 94. Third, the negative impact of a rule restricting Guzek’s ability to introduce new alibi evidence is minimized by the fact that Oregon law gives the defendant the right to present to the sentencing jury all the innocence evidence from the original trial (albeit through transcripts). The Oregon courts are free to consider on remand whether Guzek is entitled to introduce his mother’s testimony to impeach other witnesses whose earlier testimony the government intends to introduce at resentencing. Pp. 5–9. 336 Ore. 424, 86 P. 3d 1106, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Alito, J., took no part in the consideration or decision of the case.
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Respondent Randy Lee Guzek was found guilty of capital murder and sentenced to death. On appeal, the Oregon Supreme Court affirmed the conviction but vacated the sentence and ordered a new sentencing proceeding. The question before the Court is whether the State may limit the innocence-related evidence he can introduce at that proceeding to the evidence he introduced at his original trial. We hold that the limitation does not violate the Constitution. I Oregon tried Guzek for the offense of capital murder. The evidence showed that Guzek and two associates decided to burglarize the Houser family home, that they entered the house, that an associate killed Rod Houser, and that Guzek then robbed and killed Lois Houser. After the police learned that Guzek held a special grudge against the Housers, they traced him and his associates. The associates confessed. And they testified at trial, painting Guzek as the ringleader. Guzek’s defense rested in part upon an alibi. He presented two alibi witnesses, his grandfather and his mother, who testified that Guzek had been with the one or the other at the time of the crime. The jury disbelieved the alibi, it convicted Guzek, and it sentenced him to death. Guzek appealed; the Oregon Supreme Court affirmed the conviction; but the court ordered a new sentencing proceeding. Guzek was again sentenced to death; he again appealed; and the Oregon Supreme Court again ordered resentencing. Guzek was sentenced to death for the third time; he again appealed; and yet again the Oregon Supreme Court found the sentencing procedures faulty. Seeking to avoid further errors at the next (the fourth) sentencing proceeding, the Oregon Supreme Court also addressed the admissibility of certain evidence Guzek seeks to introduce at that proceeding, including live testimony from his mother about his alibi. The Oregon Supreme Court held that the Eighth and Fourteenth Amendments provide Guzek a federal constitutional right to introduce this evidence at his upcoming sentencing proceeding. At Oregon’s request, we agreed to review that determination. 544 U. S. ___ (2005). II Before turning to the merits of Oregon’s claim, we consider a motion that Guzek made, asking us to dismiss the writ of certiorari as improvidently granted. The motion rests upon Guzek’s claim that, irrespective of federal law, state law gives him the right to introduce his mother’s live testimony—the additional alibi evidence here at issue. See Ore. Rev. Stat. §138.012(2)(b) (2003). For this reason, he says, the Court lacks jurisdiction to hear this appeal, or, at the least, there is no good practical reason for us to decide the federal issue. We cannot agree, however, that we lack jurisdiction to hear the case. We possess jurisdiction to review state-court determinations that rest upon federal law. 28 U. S. C. §1257(a). And the Oregon Supreme Court here based its legal conclusion in relevant part on federal law. The court pointed out that state law permits the introduction (at a new sentencing hearing) of “ ‘evidence … relevant to [the] sentence including . . . mitigating evidence relevant to … [w]hether the defendant should receive a death sentence.’ ” App. to Pet. for Cert. 45 (quoting Ore. Rev. Stat. §§163.150(1)(a), (b) (2003); emphasis added and deleted). But it immediately added that the state law’s words “relevant … mitigating evidence” refer (in the present context) only to evidence that the Federal Constitution grants a defendant the right to present. App. to Pet. for Cert. 45–52. The Oregon court went on to discuss this Court’s statements to the effect that the Eighth and Fourteenth Amendments “ ‘require that the sentencer … not be precluded from considering, as a mitigating factor … any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” Id., at 54 (quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); emphasis deleted); cf. App. to Pet. for Cert. 56 (recognizing that this aspect of Lockett was adopted by a majority of the Court in Eddings v. Oklahoma, 455 U. S. 104, 110 (1982)). And the Oregon court then interpreted this Court’s holding in Green v. Georgia, 442 U. S. 95 (1979) (per curiam), as including, within that federal admissibility requirement, evidence which, like the proffered alibi testimony, tends to show that the defendant did not commit the crime for which he has been convicted. Thus, it held that state law demanded “admissibility” solely for a federal reason. And we possess jurisdiction. See, e.g., South Dakota v. Neville, 459 U. S. 553, 556, n. 5 (1983); Delaware v. Prouse, 440 U. S. 648, 651–653 (1979). Neither are we persuaded by Guzek’s argument that we should dismiss the case because irrespective of federal law and irrespective of the Oregon Supreme Court’s federal holding, Oregon law gives him the right to introduce witnesses who testified at the guilt phrase; and his mother was such a witness (a fact, he says, that the Oregon Supreme Court overlooked). Guzek points in support to an Oregon capital-case resentencing statute that says, “[a] transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial … are admissible in the new sentencing proceeding.” Ore. Rev. Stat. §138.012(2)(b) (2003). The provision adds that, “[e]ither party may recall any witness who testified at the prior trial … and may present additional relevant evidence.” Ibid. We do not doubt that these provisions give Guzek the state–law right to introduce a transcript of guilt-phase testimony. App. to Pet. for Cert. 43 (authorizing introduction of transcript of Guzek’s grandfather’s alibi testimony). But Guzek wishes to do more than introduce a transcript of his mother’s alibi evidence; he wishes to call his mother to the stand as a live witness and elicit additional alibi testimony. Tr. of Oral Arg. 37–39, 41, 55–56. The Oregon statute quoted above does not expressly say whether he may do so. It does give him the right to “recall any witness” who testified at the first trial and to “present additional relevant evidence.” (Emphasis added.) But is this additional evidence “relevant”? The Oregon Supreme Court thought so, but only because federal law insists upon its relevance. And its opinion suggests that, in the absence of federal compulsion, it would not fall within the scope of the state statutory word “relevant.” See supra, at 3. At most, Guzek has shown that state law might, not that it does, independently give him the right to introduce this evidence. We have made clear that “a possible adequate and independent state ground” for a decision does not “bar [our] reaching the federal questions” where, as here, a “State Supreme Court quite clearly rested its [decision] solely on the Federal Constitution.” California v. Ramos, 463 U. S. 992, 997, n. 7 (1983); see also City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 242 (1983); United Air Lines, Inc. v. Mahin, 410 U. S. 623, 630–631 (1973). And we consequently deny the motion to dismiss the writ. III As our discussion in Part II, supra, makes clear, the federal question before us is a narrow one. Do the Eighth and Fourteenth Amendments grant Guzek a constitutional right to present evidence of the kind he seeks to introduce, namely new evidence that shows he was not present at the scene of the crime. That evidence is inconsistent with Guzek’s prior conviction. It sheds no light on the manner in which he committed the crime for which he has been convicted. Nor is it evidence that Guzek contends was unavailable to him at the time of the original trial. And, to the extent it is evidence he introduced at that time, he is free to introduce it now, albeit in transcript form. Ore. Rev. Stat. §138.012(2)(b) (2003). We can find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce new evidence of this kind at sentencing. We cannot agree with the Oregon Supreme Court that our previous cases have found in the Eighth Amendment a constitutional right broad enough to encompass the evidence here at issue. In Lockett v. Ohio, supra, a plurality of this Court decided that a defendant convicted of acting in concert with others to rob and to kill could introduce at the sentencing stage evidence that she had played a minor role in the crime, indeed, that she had remained outside the shop (where the killing took place) at the time of the crime. A plurality of the Court wrote that, “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id., at 604 (emphasis added and deleted). And in Eddings v. Oklahoma, 455 U. S. 104, the Court majority adopted this statement. See also McCleskey v. Kemp, 481 U. S. 279, 306 (1987); Bell v. Ohio, 438 U. S. 637, 642 (1978) (plurality opinion). But the evidence at issue in these cases was traditional sentence-related evidence, evidence that tended to show how, not whether, the defendant committed the crime. Nor was the evidence directly inconsistent with the jury’s finding of guilt. The Oregon Supreme Court thought that this latter distinction—the fact that the “alibi evidence was inconsistent with,” rather than “consistent with[,] the underlying convictions”—did not matter. App. to Pet. for Cert. 58. It said that this “factual distinction … is of no consequence in light of the Supreme Court’s decision in Green v. Georgia.” Ibid. In Green, however, the Court focused upon a defendant convicted of murder, who sought to introduce at sentencing a statement his confederate made to a third party that he (the confederate) had alone committed the murder (i.e., without the defendant). The State opposed its use at the defendant’s sentencing hearing on the ground that, as to the defendant, it was hearsay. The Court, in a brief per curiam opinion, noted that the State had used the confession in the confederate’s trial, referred to an earlier case holding that the Constitution forbids States from “ ‘mechanistically’ ” applying the hearsay rule “ ‘to defeat the ends of justice,’ ” and held that the Constitution prohibited the State from barring use of the confession. 442 U. S., at 97 (quoting Chambers v. Mississippi, 410 U. S. 284, 302 (1973)). The opinion focused only upon the hearsay problem, and it implicitly assumed that, in the absence of the hearsay problem, state law would not have blocked admission of the evidence. In any event, subsequent to Green, this Court decided Franklin v. Lynaugh, 487 U. S. 164 (1988) (plurality opinion), and that case makes clear, contrary to the Oregon Supreme Court’s understanding, that this Court’s previous cases had not interpreted the Eighth Amendment as providing a capital defendant the right to introduce at sentencing evidence designed to cast “residual doubt” on his guilt of the basic crime of conviction. The Franklin plurality said it was “quite doubtful” that any such right existed. Id., at 173, n. 6. And two other Members of the Court added that “[o]ur cases” do not support any such “right to reconsideration by the sentencing body of lingering doubts about … guilt.” Id., at 187 (O’Connor, J., concurring in judgment). See also Penry v. Lynaugh, 492 U. S. 302, 320 (1989) (characterizing Franklin as a case in which a majority “agreed that ‘residual doubt’ as to Franklin’s guilt was not a constitutionally mandated mitigating factor” (brackets omitted)). Franklin did not resolve whether the Eighth Amendment affords capital defendants such a right, for the plurality held that the sentencing scheme at issue was constitutional “even if such a right existed.” 487 U. S.em>., at 174. But the Court’s statements on the matter make clear that the Oregon Supreme Court erred in interpreting Green as providing a capital defendant with a constitutional right to introduce residual doubt evidence at sentencing. In this case, we once again face a situation where we need not resolve whether such a right exists, for, even if it does, it could not extend so far as to provide this defendant with a right to introduce the evidence at issue. See, e.g., Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461–462 (1945). The Eighth Amendment insists upon “ ‘reliability in the determination that death is the appropriate punishment in a specific case.’ ” Penry, supra, at 328 (quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion)). The Eighth Amendment also insists that a sentencing jury be able “to consider and give effect to mitigating evidence” about the defendant’s “character or record or the circumstances of the offense.” Penry, supra, at 327–328. But the Eighth Amendment does not deprive the State of its authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted. Rather, “States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin, supra, at 181 (plurality opinion)); see, e.g., Johnson v. Texas, 509 U. S. 350, 362 (1993); California v. Brown, 479 U. S. 538, 543 (1987). Three circumstances, taken together, convince us that the State possesses the authority to regulate, through exclusion, the evidence that Guzek seeks to present. First, sentencing traditionally concerns how, not whether, a defendant committed the crime. See United States Sentencing Commission, Guidelines Manual §1A1.1, editorial note, §4(a), p. 4 (Nov. 2004). But the evidence at issue here—alibi evidence—concerns only whether, not how, he did so. Second, the parties previously litigated the issue to which the evidence is relevant—whether the defendant committed the basic crime. The evidence thereby attacks a previously determined matter in a proceeding at which, in principle, that matter is not at issue. The law typically discourages collateral attacks of this kind. Cf. Allen v. McCurry, 449 U. S. 90, 94 (1980) (“As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication”). Third, the negative impact of a rule restricting defendant’s ability to introduce new alibi evidence is minimized by the fact that Oregon law gives the defendant the right to present to the sentencing jury all the evidence of innocence from the original trial regardless. That law permits the defendant to introduce at resentencing transcripts and exhibits from his prior trial. Ore. Rev. Stat. §138.012(2)(b) (2003). The defendant here has not claimed that the evidence at issue was unavailable at the time of his original trial. Thus, he need only have introduced it at that time to guarantee its presentation (albeit through transcripts) to a resentencing jury as well. The legitimacy of these trial management and evidentiary considerations, along with the typically minimal adverse impact that a restriction would have on a defendant’s ability to present his alibi claim at resentencing convinces us that the Eighth Amendment does not protect defendant’s right to present the evidence at issue here. We conclude that the Oregon court was wrong in holding to the contrary. IV Guzek also contends that, even if the Eighth and Fourteenth Amendments do not mandate the admission of his mother’s testimony, he is entitled to introduce that evidence to impeach his associates, whose earlier testimony the government intends to introduce at resentencing. The Oregon Supreme Court did not address this issue; nor do we believe it fairly encompassed within the question presented. The Oregon courts are free to consider it on remand should they believe it appropriate to do so. V For these reasons, we vacate the judgment of the Oregon Supreme Court, and we remand the case for proceedings not inconsistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case.
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548.US.230
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Vermont’s Act 64 stringently limits both the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute to those campaigns. Soon after Act 64 became law, the petitioners—individuals who have run for state office, citizens who vote in state elections and contribute to campaigns, and political parties and committees participating in state politics—brought this suit against the respondents, state officials charged with enforcing the Act. The District Court held that Act 64’s expenditure limits violate the First Amendment, see Buckley v. Valeo, 424 U. S. 1, and that the Act’s limits on political parties’ contributions to candidates were unconstitutional, but found the other contribution limits constitutional. The Second Circuit held that all of the Act’s contribution limits are constitutional, ruled that the expenditure limits may be constitutional because they are supported by compelling interests in preventing corruption or its appearance and in limiting the time state officials must spend raising campaign funds, and remanded for the District Court to determine whether the expenditure limits were narrowly tailored to those interests. Held: The judgment is reversed, and the cases are remanded. 382 F. 3d 91, reversed and remanded. Justice Breyer, joined by The Chief Justice and Justice Alito, concluded in Parts I, II–B–3, III, and IV that both of Act 64’s sets of limitations are inconsistent with the First Amendment. Pp. 6–8, 10–29. 1. The expenditure limits violate the First Amendment’s free speech guarantees under Buckley. Pp. 6–8, 10–11. (a) In Buckley, the Court held, inter alia, that the Government’s asserted interest in preventing “corruption and the appearance of corruption,” 424 U. S., at 25, provided sufficient justification for the contribution limitations imposed on campaigns for federal office by the Federal Election Campaign Act of 1971, id., at 23–38, but that FECA’s expenditure limitations violated the First Amendment, id., at 39–59. The Court explained that the difference between the two kinds of limitations is that expenditure limits “impose significantly more severe restrictions on protected freedoms of political expression and association than” do contribution limits. Id., at 23. Contribution limits, though a “marginal restriction,” nevertheless leave the contributor “fre[e] to discuss candidates and issues.” Id., at 20–21. Expenditure limits, by contrast, impose “[a] restriction on the amount of money a person or group can spend on political communication,” id., at 19, and thereby necessarily “reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,” ibid. For over 30 years, in considering the constitutionality of a host of campaign finance statutes, this Court has adhered to Buckley’s constraints, including those on expenditure limits. See, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 134. Pp. 6–8. (b) The respondents argue unpersuasively that Buckley should be distinguished from the present cases on a ground they say Buckley did not consider: that expenditure limits help to protect candidates from spending too much time raising money rather than devoting that time to campaigning among ordinary voters. There is no significant basis for that distinction. Act 64’s expenditure limits are not substantially different from those at issue in Buckley. Nor is Vermont’s primary justification for imposing its expenditure limits significantly different from Congress’ rationale for the Buckley limits: preventing corruption and its appearance. The respondents say unpersuasively that, had the Buckley Court considered the time protection rationale for expenditure limits, the Court would have upheld those limits in the FECA. The Buckley Court, however, was aware of the connection between expenditure limits and a reduction in fundraising time. And, in any event, the connection seems perfectly obvious. Under these circumstances, the respondents’ argument amounts to no more than an invitation so to limit Buckley’s holding as effectively to overrule it. That invitation is declined. Pp. 10–11. 2. Act 64’s contribution limits violate the First Amendment because those limits, in their specific details, burden protected interests in a manner disproportionate to the public purposes they were enacted to advance. Pp. 11–29. (a) In upholding the $1,000 contribution limit before it, the Buckley Court recognized, inter alia, that such limits, unlike expenditure limits, “involv[e] little direct restraint on” the contributor’s speech, 424 U. S., at 21, and are permissible as long as the government demonstrates that they are “closely drawn” to match a “sufficiently important interest,” id., at 25. It found that the interest there advanced, “prevent[ing] corruption” and its “appearance,” was “sufficiently important” to justify the contribution limits, id., at 25–26, and that those limits were “closely drawn.” Although recognizing that, in determining whether a particular contribution limit was “closely drawn,” the amount, or level, of that limit could make a difference, see id., at 21, the Court added that such “distinctions in degree become significant only when they … amount to differences in kind,” id., at 30. Pointing out that it had “no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000,” ibid., the Court found “no indication” that FECA’s contribution limitations would have “any dramatic adverse effect on the funding of campaigns,” id., at 21. Since Buckley, the Court has consistently upheld contribution limits in other statutes, but has recognized that such limits might sometimes work more harm to protected First Amendment interests than their anticorruption objectives could justify, see, e.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 395–397. Pp. 12–13. (b) Although the Court has “no scalpel to probe,” 424 U. S., at 30, with exactitude whether particular contribution limits are too low and normally defers to the legislature in that regard, it must nevertheless recognize the existence of some lower bound, as Buckley acknowledges. While the interests served by contribution limits, preventing corruption and its appearance, “directly implicate the integrity of our electoral process,” McConnell, supra, at 136, that does not simply mean the lower the limit, the better. Contribution limits that are too low also can harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability. Where there is strong indication in a particular case, i.e., danger signs, that such risks exist (both present in kind and likely serious in degree), courts, including appellate courts, must review the record independently and carefully with an eye toward assessing the statute’s “tailoring,” i.e., toward assessing the restrictions’ proportionality. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499. Danger signs that Act 64’s contribution limits may fall outside tolerable First Amendment limits are present here. They are substantially lower than both the limits the Court has previously upheld and the comparable limits in force in other States. Consequently, the record must be examined to determine whether Act 64’s contribution limits are “closely drawn” to match the State’s interests. Pp. 13–19. (c) The record demonstrates that, from a constitutional perspective, Act 64’s contribution limits are too restrictive. Five sets of factors, taken together, lead to the conclusion that those limits are not narrowly tailored. First, the record suggests, though it does not conclusively prove, that Act 64’s contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. Second, Act 64’s insistence that a political party and all of its affiliates together abide by exactly the same low $200 to $400 contribution limits that apply to individual contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e.g., California Democratic Party v. Jones, 530 U. S. 567, 574. Although the Court upheld federal limits on political parties’ contributions to candidates in Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, the limits there at issue were far less problematic, for they were significantly higher than Act 64’s limits, see, e.g., id., at 438–439, and n. 3, and they were much higher than the federal limits on contributions from individuals to candidates, see id., at 453. Third, Act 64’s treatment of volunteer services aggravates the problem. Although the Act excludes uncompensated volunteer services from its “contribution” definition, it does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities. The combination of very low contribution limits and the absence of an exception excluding volunteer expenses may well impede a campaign’s ability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. Buckley, supra, at 22. Fourth, unlike the contribution limits upheld in Shrink, Act 64’s limits are not adjusted for inflation, but decline in real value each year. A failure to index limits means that limits already suspiciously low will almost inevitably become too low over time. Fifth, nowhere in the record is there any special justification for Act 64’s low and restrictive contribution limits. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. Indeed, other things being equal, one might reasonably believe that a contribution of, say, $250 (or $450) to a candidate’s campaign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases the Court has considered. Pp. 19–28. (d) It is not possible to sever some of the Act’s contribution limit provisions from others that might remain fully operative. Doing so would require the Court to write words into the statute (inflation indexing), to leave gaping loopholes (no limits on party contributions), or to foresee which of many different possible ways the Vermont Legislature might respond to the constitutional objections to Act 64. In these circumstances, the legislature likely would not have intended the Court to set aside the statute’s contribution limits. The legislature is free to rewrite those provisions to address the constitutional difficulties here identified. Pp. 28–29. Justice Breyer, joined by The Chief Justice in Parts II–B–1 and II–B–2, rejected the respondents’ argument that Buckley should, in effect, be overruled because subsequent experience has shown that contribution limits alone cannot effectively deter corruption or its appearance. Stare decisis, the basic legal principle commanding judicial respect for a court’s earlier decisions and their rules of law, prevents the overruling of Buckley. Adherence to precedent is the norm; departure from it is exceptional, requiring “special justification,” Arizona v. Rumsey, 467 U. S. 203, 212, especially where, as here, the principle at issue has become settled through iteration and reiteration over a long period. There is no special justification here. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U. S. 428, 443. Nor is there any demonstration that circumstances have changed so radically as to undermine Buckley’s critical factual assumptions. The respondents have not shown, for example, any dramatic increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack that problem. Cf. McConnell, supra. Finally, overruling Buckley now would dramatically undermine the considerable reliance that Congress and state legislatures have placed upon it in drafting campaign finance laws. And this Court has followed Buckley, upholding and applying its reasoning in later cases. Pp. 8–10. Justice Alito agreed that Act 64’s expenditure and contribution limits violate the First Amendment, but concluded that respondents’ backup argument asking this Court to revisit Buckley v. Valeo, 424 U. S. 1, need not be reached because they have failed to address considerations of stare decisis. Pp. 1–2. Justice Kennedy agreed that Vermont’s limitations on campaign expenditures and contributions violate the First Amendment, but concluded that, given his skepticism regarding this Court’s campaign finance jurisprudence, see, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 286–287, 313, it is appropriate for him to concur only in the judgment. Pp. 1–3. Justice Thomas, joined by Justice Scalia, agreed that Vermont’s Act 64 is unconstitutional, but disagreed with the plurality’s rationale for striking down that statute. Buckley v. Valeo, 424 U. S. 1, provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment. This Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410–418. Both the contribution and expenditure restrictions of Act 64 should be subjected to strict scrutiny, which they would fail. See, e.g., Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 640–641. Pp. 1–10. Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., joined, and in which Alito, J., joined as to all but Parts II–B–1 and II–B–2. Alito, J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which Stevens, J., joined as to Parts II and III. Together with No. 04–1530, Vermont Republican State Committee et al. v. Sorrell et al., and No. 04–1697, Sorrell et al. v. Randall et al., also on certiorari to the same court.
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. The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment’s requirement of careful tailoring. Id., at 25–30. That is to say, they impose burdens upon First Amendment interests that (when viewed in light of the statute’s legitimate objectives) are disproportionately severe. I A Prior to 1997, Vermont’s campaign finance law imposed no limit upon the amount a candidate for state office could spend. It did, however, impose limits upon the amounts that individuals, corporations, and political committees could contribute to the campaign of such a candidate. Individuals and corporations could contribute no more than $1,000 to any candidate for state office. §2805(a) (1996). Political committees, excluding political parties, could contribute no more than $3,000. §2805(b). The statute imposed no limit on the amount that political parties could contribute to candidates. In 1997, Vermont enacted a more stringent campaign finance law, Pub. Act No. 64, codified at Vt. Stat. Ann., Tit. 17, §2801 et seq. (2002) (hereinafter Act or Act 64), the statute at issue here. Act 64, which took effect immediately after the 1998 elections, imposes mandatory expenditure limits on the total amount a candidate for state office can spend during a “two-year general election cycle,” i.e., the primary plus the general election, in approximately the following amounts: governor, $300,000; lieutenant governor, $100,000; other statewide offices, $45,000; state senator, $4,000 (plus an additional $2,500 for each additional seat in the district); state representative (two-member district), $3,000; and state representative (single member district), $2,000. §2805a(a). These limits are adjusted for inflation in odd-numbered years based on the Consumer Price Index. §2805a(e). Incumbents seeking reelection to statewide office may spend no more than 85% of the above amounts, and incumbents seeking reelection to the State Senate or House may spend no more than 90% of the above amounts. §2805a(c). The Act defines “[e]xpenditure” broadly to mean the “payment, disbursement, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid, for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates.” §2801(3). With certain minor exceptions, expenditures over $50 made on a candidate’s behalf by others count against the candidate’s expenditure limit if those expenditures are “intentionally facilitated by, solicited by or approved by” the candidate’s campaign. §§2809(b), (c). These provisions apply so as to count against a campaign’s expenditure limit any spending by political parties or committees that is coordinated with the campaign and benefits the candidate. And any party expenditure that “primarily benefits six or fewer candidates who are associated with the political party” is “presumed” to be coordinated with the campaign and therefore to count against the campaign’s expenditure limit. §§2809(b), (d). Act 64 also imposes strict contribution limits. The amount any single individual can contribute to the campaign of a candidate for state office during a “two-year general election cycle” is limited as follows: governor, lieutenant governor, and other statewide offices, $400; state senator, $300; and state representative, $200. §2805(a). Unlike its expenditure limits, Act 64’s contribution limits are not indexed for inflation. A political committee is subject to these same limits. Ibid. So is a political party, ibid., defined broadly to include “any subsidiary, branch or local unit” of a party, as well as any “national or regional affiliates” of a party (taken separately or together). §2801(5). Thus, for example, the statute treats the local, state, and national affiliates of the Democratic Party as if they were a single entity and limits their total contribution to a single candidate’s campaign for governor (during the primary and the general election together) to $400. The Act also imposes a limit of $2,000 upon the amount any individual can give to a political party during a 2-year general election cycle. §2805(a). The Act defines “contribution” broadly in approximately the same way it defines “expenditure.” §2801(2). Any expenditure made on a candidate’s behalf counts as a contribution to the candidate if it is “intentionally facilitated by, solicited by or approved by” the candidate. §§2809(a), (c). And a party expenditure that “primarily benefits six or fewer candidates who are associated with the” party is “presumed” to count against the party’s contribution limits. §§2809(a), (d). There are a few exceptions. A candidate’s own contributions to the campaign and those of the candidate’s family fall outside the contribution limits. §2805(f). Volunteer services do not count as contributions. §2801(2). Nor does the cost of a meet-the-candidate function, provided that the total cost for the function amounts to $100 or less. §2809(d). In addition to these expenditure and contribution limits, the Act sets forth disclosure and reporting requirements and creates a voluntary public financing system for gubernatorial elections. §§2803, 2811, 2821–2823, 2831, 2832, 2851–2856. None of these is at issue here. The Act also limits the amount of contributions a candidate, political committee, or political party can receive from out-of-state sources. §2805(c). The lower courts held these out-of-state contribution limits unconstitutional, and the parties do not challenge that holding. B The petitioners are individuals who have run for state office in Vermont, citizens who vote in Vermont elections and contribute to Vermont campaigns, and political parties and committees that participate in Vermont politics. Soon after Act 64 became law, they brought this lawsuit in Federal District Court against the respondents, state officials charged with enforcement of the Act. Several other private groups and individual citizens intervened in the District Court proceedings in support of the Act and are joined here as respondents as well. The District Court agreed with the petitioners that the Act’s expenditure limits violate the First Amendment. See Buckley, 424 U. S. 1. The court also held unconstitutional the Act’s limits on the contributions of political parties to candidates. At the same time, the court found the Act’s other contribution limits constitutional. Landell v. Sorrell, 118 F. Supp. 2d 470 (Vt. 2000). Both sides appealed. A divided panel of the Court of Appeals for the Second Circuit held that all of the Act’s contribution limits are constitutional. It also held that the Act’s expenditure limits may be constitutional. Landell v. Sorrell, 382 F. 3d 91 (2004). It found those limits supported by two compelling interests, namely, an interest in preventing corruption or the appearance of corruption and an interest in limiting the amount of time state officials must spend raising campaign funds. The Circuit then remanded the case to the District Court with instructions to determine whether the Act’s expenditure limits were narrowly tailored to those interests. The petitioners and respondents all sought certiorari. They asked us to consider the constitutionality of Act 64’s expenditure limits, its contribution limits, and a related definitional provision. We agreed to do so. 545 U. S. ___ (2005). II We turn first to the Act’s expenditure limits. Do those limits violate the First Amendment’s free speech guarantees? A In Buckley v. Valeo, supra, the Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as amended, 2 U. S. C. §431 et seq., a statute that, much like the Act before us, imposed both expenditure and contribution limitations on campaigns for public office. The Court, while upholding FECA’s contribution limitations as constitutional, held that the statute’s expenditure limitations violated the First Amendment. Buckley stated that both kinds of limitations “implicate fundamental First Amendment interests.” 424 U. S., at 23. It noted that the Government had sought to justify the statute’s infringement on those interests in terms of the need to prevent “corruption and the appearance of corruption.” Id., at 25; see also id., at 55. In the Court’s view, this rationale provided sufficient justification for the statute’s contribution limitations, but it did not provide sufficient justification for the expenditure limitations. The Court explained that the basic reason for this difference between the two kinds of limitations is that expenditure limitations “impose significantly more severe restrictions on protected freedoms of political expression and association than” do contribution limitations. Id., at 23. Contribution limitations, though a “marginal restriction upon the contributor’s ability to engage in free communication,” nevertheless leave the contributor “fre[e] to discuss candidates and issues.” Id., at 20–21. Expenditure limitations, by contrast, impose “[a] restriction on the amount of money a person or group can spend on political communication during a campaign.” Id., at 19. They thereby necessarily “reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Ibid. Indeed, the freedom “to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.” Id., at 19, n. 18. The Court concluded that “[n]o governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by” the statute’s expenditure limitations. Id., at 55. It decided that the Government’s primary justification for expenditure limitations, preventing corruption and its appearance, was adequately addressed by the Act’s contribution limitations and disclosure requirements. Ibid. The Court also considered other governmental interests advanced in support of expenditure limitations. It rejected each. Id., at 56–57. Consequently, it held that the expenditure limitations were “constitutionally invalid.” Id., at 58. Over the last 30 years, in considering the constitutionality of a host of different campaign finance statutes, this Court has repeatedly adhered to Buckley’s constraints, including those on expenditure limits. See McConnell v. Federal Election Comm’n, 540 U. S. 93, 134 (2003); Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 441 (2001) (Colorado II); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 386 (2000) (Shrink); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 610 (1996) (Colorado I) (plurality opinion); Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 259–260 (1986); Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 491 (1985) (NCPAC); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182, 194–195 (1981) (plurality opinion). B 1 The respondents recognize that, in respect to expenditure limits, Buckley appears to be a controlling—and unfavorable—precedent. They seek to overcome that precedent in two ways. First, they ask us in effect to overrule Buckley. Post-Buckley experience, they believe, has shown that contribution limits (and disclosure requirements) alone cannot effectively deter corruption or its appearance; hence experience has undermined an assumption underlying that case. Indeed, the respondents have devoted several pages of their briefs to attacking Buckley’s holding on expenditure limits. See Brief for Respondent-Cross-Petitioner Vermont Public Interest Research Group et al. 36–39 (arguing that “sound reasons exist to revisit the applicable standard of review” for expenditure limits); Brief for Respondent-Cross-Petitioner William Sorrell et al. 28–31 (arguing that “the Court should revisit Buckley and consider alternative constitutional approaches to spending limits”). Second, in the alternative, they ask us to limit the scope of Buckley significantly by distinguishing Buckley from the present case. They advance as a ground for distinction a justification for expenditure limitations that, they say, Buckley did not consider, namely that such limits help to protect candidates from spending too much time raising money rather than devoting that time to campaigning among ordinary voters. We find neither argument persuasive. 2 The Court has often recognized the “fundamental importance” of stare decisis, the basic legal principle that commands judicial respect for a court’s earlier decisions and the rules of law they embody. See Harris v. United States, 536 U. S. 545, 556–557 (2002) (plurality opinion) (citing numerous cases). The Court has pointed out that stare decisis “ ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991)). Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires “special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984). This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time. We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U. S. 428, 443 (2000). We cannot find in the respondents’ claims any demonstration that circumstances have changed so radically as to undermine Buckley’s critical factual assumptions. The respondents have not shown, for example, any dramatic increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack that problem. Cf. McConnell v. FEC, 540 U. S. 93. At the same time, Buckley has promoted considerable reliance. Congress and state legislatures have used Buckley when drafting campaign finance laws. And, as we have said, this Court has followed Buckley, upholding and applying its reasoning in later cases. Overruling Buckley now would dramatically undermine this reliance on our settled precedent. For all these reasons, we find this a case that fits the stare decisis norm. And we do not perceive the strong justification that would be necessary to warrant overruling so well established a precedent. We consequently decline the respondents’ invitation to reconsider Buckley. 3 The respondents also ask us to distinguish these cases from Buckley. But we can find no significant basis for that distinction. Act 64’s expenditure limits are not substantially different from those at issue in Buckley. In both instances the limits consist of a dollar cap imposed upon a candidate’s expenditures. Nor is Vermont’s primary justification for imposing its expenditure limits significantly different from Congress’ rationale for the Buckley limits: preventing corruption and its appearance. The sole basis on which the respondents seek to distinguish Buckley concerns a further supporting justification. They argue that expenditure limits are necessary in order to reduce the amount of time candidates must spend raising money. Brief for Respondent/Cross-Petitioner Vermont Public Interest Research Group et al. 16–20; Brief for Respondent/Cross-Petitioner William H. Sorrell et al. 22–25. Increased campaign costs, together with the fear of a better-funded opponent, mean that, without expenditure limits, a candidate must spend too much time raising money instead of meeting the voters and engaging in public debate. Buckley, the respondents add, did not fully consider this justification. Had it done so, they say, the Court would have upheld, not struck down, FECA’s expenditure limits. In our view, it is highly unlikely that fuller consideration of this time protection rationale would have changed Buckley’s result. The Buckley Court was aware of the connection between expenditure limits and a reduction in fundraising time. In a section of the opinion dealing with FECA’s public financing provisions, it wrote that Congress was trying to “free candidates from the rigors of fundraising.” 424 U. S., at 91; see also id., at 96 (“[L]imits on contributions necessarily increase the burden of fundraising,” and “public financing” was designed in part to relieve Presidential candidates “from the rigors of soliciting private contributions”); id., at 258–259 (White, J., concurring in part and dissenting in part) (same). The Court of Appeals’ opinion and the briefs filed in this Court pointed out that a natural consequence of higher campaign expenditures was that “candidates were compelled to allow to fund raising increasing and extreme amounts of money and energy.” Buckley v. Valeo, 519 F. 2d 821, 838 (CADC 1975); see also Brief for United States et al. as Amici Curiae in Buckley v. Valeo, O. T. 1975, Nos. 75–436 and 75–437, p. 36 (“Fund raising consumes candidate time that otherwise would be devoted to campaigning”). And, in any event, the connection between high campaign expenditures and increased fundraising demands seems perfectly obvious. Under these circumstances, the respondents’ argument amounts to no more than an invitation so to limit Buckley’s holding as effectively to overrule it. For the reasons set forth above, we decline that invitation as well. And, given Buckley’s continued authority, we must conclude that Act 64’s expenditure limits violate the First Amendment. III We turn now to a more complex question, namely the constitutionality of Act 64’s contribution limits. The parties, while accepting Buckley’s approach, dispute whether, despite Buckley’s general approval of statutes that limit campaign contributions, Act 64’s contribution limits are so severe that in the circumstances its particular limits violate the First Amendment. A As with the Act’s expenditure limits, we begin with Buckley. In that case, the Court upheld the $1,000 contribution limit before it. Buckley recognized that contribution limits, like expenditure limits, “implicate fundamental First Amendment interests,” namely, the freedoms of “political expression” and “political association.” 424 U. S., at 15, 23. But, unlike expenditure limits (which “necessarily reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,” id., at 19), contribution limits “involv[e] little direct restraint on” the contributor’s speech, id., at 21. They do restrict “one aspect of the contributor’s freedom of political association,” namely, the contributor’s ability to support a favored candidate, but they nonetheless “permi[t] the symbolic expression of support evidenced by a contribution,” and they do “not in any way infringe the contributor’s freedom to discuss candidates and issues.” Id., at 21, 24. Consequently, the Court wrote, contribution limitations are permissible as long as the Government demonstrates that the limits are “closely drawn” to match a “sufficiently important interest.” Id., at 25. It found that the interest advanced in the case, “prevent[ing] corruption” and its “appearance,” was “sufficiently important” to justify the statute’s contribution limits. Id., at 25–26. The Court also found that the contribution limits before it were “closely drawn.” It recognized that, in determining whether a particular contribution limit was “closely drawn,” the amount, or level, of that limit could make a difference. Indeed, it wrote that “contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.” Id., at 21. But the Court added that such “distinctions in degree become significant only when they can be said to amount to differences in kind.” Id., at 30. Pointing out that it had “no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000,” ibid., the Court found “no indication” that the $1,000 contribution limitations imposed by the Act would have “any dramatic adverse effect on the funding of campaigns,” id., at 21. It therefore found the limitations constitutional. Since Buckley, the Court has consistently upheld contribution limits in other statutes. Shrink, 528 U. S. 377 ($1075 limit on contributions to candidates for Missouri state auditor); California Medical Assn., 453 U. S. 182 ($5,000 limit on contributions to multicandidate political committees). The Court has recognized, however, that contribution limits might sometimes work more harm to protected First Amendment interests than their anticorruption objectives could justify. See Shrink, supra, at 395–397; Buckley, supra, at 21. And individual Members of the Court have expressed concern lest too low a limit magnify the “reputation-related or media-related advantages of incumbency and thereby insulat[e] legislators from effective electoral challenge.” Shrink, supra, at 403–404 (Breyer, J., joined by Ginsburg, J., concurring). In the cases before us, the petitioners challenge Act 64’s contribution limits on that basis. B Following Buckley, we must determine whether Act 64’s contribution limits prevent candidates from “amassing the resources necessary for effective [campaign] advocacy,” 424 U. S., at 21; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny. In answering these questions, we recognize, as Buckley stated, that we have “no scalpel to probe” each possible contribution level. Id., at 30. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute’s legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have “particular expertise” in matters related to the costs and nature of running for office. McConnell, 540 U. S., at 137. Thus ordinarily we have deferred to the legislature’s determination of such matters. Nonetheless, as Buckley acknowledged, we must recognize the existence of some lower bound. At some point the constitutional risks to the democratic electoral process become too great. After all, the interests underlying contribution limits, preventing corruption and the appearance of corruption, “directly implicate the integrity of our electoral process.” McConnell, supra, at 136 (internal quotation marks omitted). Yet that rationale does not simply mean “the lower the limit, the better.” That is because contribution limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability. Were we to ignore that fact, a statute that seeks to regulate campaign contributions could itself prove an obstacle to the very electoral fairness it seeks to promote. Thus, we see no alternative to the exercise of independent judicial judgment as a statute reaches those outer limits. And, where there is strong indication in a particular case, i.e., danger signs, that such risks exist (both present in kind and likely serious in degree), courts, including appellate courts, must review the record independently and carefully with an eye toward assessing the statute’s “tailoring,” that is, toward assessing the proportionality of the restrictions. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984) (“[A]n appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression’ ” (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 284–286 (1964))). We find those danger signs present here. As compared with the contribution limits upheld by the Court in the past, and with those in force in other States, Act 64’s limits are sufficiently low as to generate suspicion that they are not closely drawn. The Act sets its limits per election cycle, which includes both a primary and a general election. Thus, in a gubernatorial race with both primary and final election contests, the Act’s contribution limit amounts to $200 per election per candidate (with significantly lower limits for contributions to candidates for State Senate and House of Representatives, see supra, at 3). These limits apply both to contributions from individuals and to contributions from political parties, whether made in cash or in expenditures coordinated (or presumed to be coordinated) with the candidate. See supra, at 3–4. These limits are well below the limits this Court upheld in Buckley. Indeed, in terms of real dollars (i.e., adjusting for inflation), the Act’s $200 per election limit on individual contributions to a campaign for governor is slightly more than one-twentieth of the limit on contributions to campaigns for federal office before the Court in Buckley. Adjusted to reflect its value in 1976 (the year Buckley was decided), Vermont’s contribution limit on campaigns for statewide office (including governor) amounts to $113.91 per 2-year election cycle, or roughly $57 per election, as compared to the $1,000 per election limit on individual contributions at issue in Buckley. (The adjusted value of Act 64’s limit on contributions from political parties to candidates for statewide office, again $200 per candidate per election, is just over one one-hundredth of the comparable limit before the Court in Buckley, $5,000 per election.) Yet Vermont’s gubernatorial district—the entire State—is no smaller than the House districts to which Buckley’s limits applied. In 1976, the average congressional district contained a population of about 465,000. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 459 (1976) (Statistical Abstract) (describing results of 1970 census). Indeed, Vermont’s population is 621,000—about one-third larger. Statistical Abstract 21 (2006) (describing Vermont’s population in 2004). Moreover, considered as a whole, Vermont’s contribution limits are the lowest in the Nation. Act 64 limits contributions to candidates for statewide office (including governor) to $200 per candidate per election. We have found no State that imposes a lower per election limit. Indeed, we have found only seven States that impose limits on contributions to candidates for statewide office at or below $500 per election, more than twice Act 64’s limit. Cf. Ariz. Rev. Stat. Ann. §16–905 (West Cum. Supp. 2005) ($760 per election cycle, or $380 per election, adjusted for inflation); Colo. Const., Art. XXVIII, §3 ($500 per election, adjusted for inflation); Fla. Stat. §106.08(1)(a) (2003) ($500 per election); Me. Rev. Stat. Ann., Tit. 21A, §1015(1) (1993) ($500 for governor, $250 for other statewide office, per election); Mass. Gen. Laws, ch. 55, §7A (West Supp. 2006) ($500 per year, or $250 per election); Mont. Code Ann. §13–37–216(1)(a) (2005) ($500 for governor, $250 for other statewide office, per election); S. D. Codified Laws §12–25–1.1 (2004) ($1,000 per year, or $500 per election). We are aware of no State that imposes a limit on contributions from political parties to candidates for statewide office lower than Act 64’s $200 per candidate per election limit. Cf. Me. Rev. Stat. Ann., Tit. 21A, §1015(1) (1993) (next lowest: $500 for contribution from party to candidate for governor, $250 for contribution from party to candidate for other statewide office, both per election). Similarly, we have found only three States that have limits on contributions to candidates for state legislature below Act 64’s $150 and $100 per election limits. Ariz. Rev. Stat. Ann. §16–905 (West Cum. Supp. 2005) ($296 per election cycle, or $148 per election); Mont. Code Ann. §13–37–216(1)(a) (2005) ($130 per election); S. D. Codified Laws §12–25–1.1 (2004) ($250 per year, or $125 per election). And we are aware of no State that has a lower limit on contributions from political parties to state legislative candidates. Cf. Me. Rev. Stat. Ann., Tit. 21A, §1015(1) (1993) (next lowest: $250 per election). Finally, Vermont’s limit is well below the lowest limit this Court has previously upheld, the limit of $1,075 per election (adjusted for inflation every two years, see Mo. Rev. Stat. §130.032.2 (1998 Cum. Supp.)) for candidates for Missouri state auditor. Shrink, 528 U. S.em>. 377. The comparable Vermont limit of roughly $200 per election, not adjusted for inflation, is less than one-sixth of Missouri’s current inflation-adjusted limit ($1,275). We recognize that Vermont’s population is much smaller than Missouri’s. Indeed, Vermont is about one-ninth of the size of Missouri. Statistical Abstract 21 (2006). Thus, per citizen, Vermont’s limit is slightly more generous. As of 2006, the ratio of the contribution limit to the size of the constituency in Vermont is .00064, while Missouri’s ratio is .00044, 31% lower. Cf. App. 55 (doing same calculation in 2000). But this does not necessarily mean that Vermont’s limits are less objectionable than the limit upheld in Shrink. A campaign for state auditor is likely to be less costly than a campaign for governor; campaign costs do not automatically increase or decrease in precise proportion to the size of an electoral district. See App. 66 (1998 winning candidate for Vermont state auditor spent about $60,000; winning candidate for governor spent about $340,000); Opensecrets.org, The Big Picture, 2004 Cycle: Hot Races, available at http://www.opensecrets.org/ bigpicture/hotraces.asp?cycle=2004 (as visited June 22, 2006, and available in Clerk of Court’s case file) (U. S. Senate campaigns identified as competitive spend less per voter than U. S. House campaigns identified as competitive). Moreover, Vermont’s limits, unlike Missouri’s limits, apply in the same amounts to contributions made by political parties. Mo. Rev. Stat. §130.032.4 (2000) (enacting limits on contributions from political parties to candidates 10 times higher than limits on contributions from individuals). And, as we have said, Missouri’s (current) $1,275 per election limit, unlike Vermont’s $200 per election limit, is indexed for inflation. See supra, at 17; see also Mo. Rev. Stat. §130.032.2 (2000). The factors we have mentioned offset any neutralizing force of population differences. At the very least, they make it difficult to treat Shrink’s (then) $1,075 limit as providing affirmative support for the lawfulness of Vermont’s far lower levels. Cf. 528 U. S., at 404 (Breyer, J., concurring) (The Shrink “limit . . . is low enough to raise … a [significant constitutional] question”). And even were that not so, Vermont’s failure to index for inflation means that Vermont’s levels would soon be far lower than Missouri’s regardless of the method of comparison. In sum, Act 64’s contribution limits are substantially lower than both the limits we have previously upheld and comparable limits in other States. These are danger signs that Act 64’s contribution limits may fall outside tolerable First Amendment limits. We consequently must examine the record independently and carefully to determine whether Act 64’s contribution limits are “closely drawn” to match the State’s interests. C Our examination of the record convinces us that, from a constitutional perspective, Act 64’s contribution limits are too restrictive. We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections. Taken together, Act 64’s substantial restrictions on the ability of candidates to raise the funds necessary to run a competitive election, on the ability of political parties to help their candidates get elected, and on the ability of individual citizens to volunteer their time to campaigns show that the Act is not closely drawn to meet its objectives. In particular, five factors together lead us to this decision. First, the record suggests, though it does not conclusively prove, that Act 64’s contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. For one thing, the petitioners’ expert, Clark Bensen, conducted a race-by-race analysis of the 1998 legislative elections (the last to take place before Act 64 took effect) and concluded that Act 64’s contribution limits would have reduced the funds available in 1998 to Republican challengers in competitive races in amounts ranging from 18% to 53% of their total campaign income. See 3 Tr. 52–57 (estimating loss of 47% of funds for candidate Tully, 50% for Harvey, 53% for Welch, 19% for Bahre, 29% for Delaney, 36% for LaRocque, 18% for Smith, and 31% for Brown). For another thing, the petitioners’ expert witnesses produced evidence and analysis showing that Vermont political parties (particularly the Republican Party) “target” their contributions to candidates in competitive races, that those contributions represent a significant amount of total candidate funding in such races, and that the contribution limits will cut the parties’ contributions to competitive races dramatically. See 1 id., at 189–190; 3 id., at 50–51; 8 id., at 139; 10 id., at 150; see also, e.g., Gierzynski & Breaux, The Role of Parties in Legislative Campaign Financing, 15 Am. Rev. Politics 171 (1994); Thompson, Cassie, & Jewell, A Sacred Cow or Just a Lot of Bull? Party and PAC Money in State Legislative Elections, 47 Pol. Sci. Q. 223 (1994). Their statistics showed that the party contributions accounted for a significant percentage of the total campaign income in those races. And their studies showed that Act 64’s contribution limits would cut the party contributions by between 85% (for the legislature on average) and 99% (for governor). More specifically, Bensen pointed out that in 1998, the Republican Party made contributions to 19 Senate campaigns in amounts that averaged $2,001, which on average represented 16% of the recipient campaign’s total income. 3 Tr. 84. Act 64 would reduce these contributions to $300 per campaign, an average reduction of about 85%. Ibid. The party contributed to 50 House campaigns in amounts averaging $787, which on average represented 28% of the recipient campaign’s total income. Id., at 85. Act 64 would reduce these contributions to $200 per campaign, an average reduction of 74.5%. Ibid. And the party contributed $40,600 to its gubernatorial candidate, an amount that accounted for about 16% of the candidate’s funding. Id., at 86. The Act would have reduced that contribution by 99%, to $400. Bensen added that 57% of all 1998 Senate campaigns and 30% of all House campaigns exceeded Act 64’s expenditure limits, which were enacted along with the statute’s contribution limits. 7 Trial Exhs. in No. 00–9159(L) etc. (CA2), Exh. 8, p. 2351. Moreover, 27% of all Senate campaigns and 10% of all House campaigns spent more than double those limits. Ibid. The respondents did not contest these figures. Rather, they presented evidence that focused, not upon strongly contested campaigns, but upon the funding amounts available for the average campaign. The respondents’ expert, Anthony Gierzynski, concluded, for example, that Act 64 would have a “minimal effect on … candidates’ ability to raise funds.” App. 46. But he rested this conclusion upon his finding that “only a small proportion of” all contributions to all campaigns for state office “made during the last three elections would have been affected by the new limits.” Id., at 47; see also id., at 51 (discussing “average amount of revenues lost to the limits” in legislative races (emphasis added)); id., at 52–53 (discussing total number of campaigns receiving contributions over Act 64’s limit). The lower courts similarly relied almost exclusively on averages in assessing Act 64’s effect. See 118 F. Supp. 2d, at 470 (“Approximately 88% to 96% of the campaign contributions to recent House races were under $200” (emphasis added)); id., at 478 (“Expert testimony revealed that over the last three election cycles the percentage of all candidates’ contributions received over the contribution limits was less than 10%” (emphasis added)). The respondents’ evidence leaves the petitioners’ evidence unrebutted in certain key respects. That is because the critical question concerns not simply the average effect of contribution limits on fundraising but, more importantly, the ability of a candidate running against an incumbent officeholder to mount an effective challenge. And information about average races, rather than competitive races, is only distantly related to that question, because competitive races are likely to be far more expensive than the average race. See, e.g., N. Ornstein, T. Mann, & M. Malbin, Vital Statistics on Congress 2001–2002, pp. 89–98 (2002) (data showing that spending in competitive elections, i.e., where incumbent wins with less than 60% of vote or where incumbent loses, is far greater than in most elections, where incumbent wins with more than 60% of the vote). We concede that the record does contain some anecdotal evidence supporting the respondents’ position, namely, testimony about a post-Act-64 competitive mayoral campaign in Burlington, which suggests that a challenger can “amas[s] the resources necessary for effective advocacy,” Buckley, 424 U. S., at 21. But the facts of that particular election are not described in sufficient detail to offer a convincing refutation of the implication arising from the petitioners’ experts’ studies. Rather, the petitioners’ studies, taken together with low average Vermont campaign expenditures and the typically higher costs that a challenger must bear to overcome the name-recognition advantage enjoyed by an incumbent, raise a reasonable inference that the contribution limits are so low that they may pose a significant obstacle to candidates in competitive elections. Cf. Ornstein, supra, at 87–96 (In 2000 U. S. House and Senate elections, successful challengers spent far more than the average candidate). Information about average races does not rebut that inference. Consequently, the inference amounts to one factor (among others) that here counts against the constitutional validity of the contribution limits. Second, Act 64’s insistence that political parties abide by exactly the same low contribution limits that apply to other contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e.g., California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) (describing constitutional importance of associating in political parties to elect candidates); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 357 (1997) (same); Colorado I, 518 U. S., at 616 (same); Norman v. Reed, 502 U. S. 279, 288 (1992) (same). Cf. Buckley, supra, at 20–22 (contribution limits constitute “only a marginal restriction” on First Amendment rights because contributor remains free to associate politically, e.g., in a political party, and “assist personally” in the party’s “efforts on behalf of candidates”). The Act applies its $200 to $400 limits—precisely the same limits it applies to an individual—to virtually all affiliates of a political party taken together as if they were a single contributor. Vt. Stat. Ann., Tit. 17, §2805(a) (2002). That means, for example, that the Vermont Democratic Party, taken together with all its local affiliates, can make one contribution of at most $400 to the Democratic gubernatorial candidate, one contribution of at most $300 to a Democratic candidate for State Senate, and one contribution of at most $200 to a Democratic candidate for the State House of Representatives. The Act includes within these limits not only direct monetary contributions but also expenditures in kind: stamps, stationery, coffee, doughnuts, gasoline, campaign buttons, and so forth. See §2801(2). Indeed, it includes all party expenditures “intended to promote the election of a specific candidate or group of candidates” as long as the candidate’s campaign “facilitate[s],” “solicit[s],” or “approve[s]” them. §§2809(a), (c). And a party expenditure that “primarily benefits six or fewer candidates who are associated with the” party is “presumed” to count against the party’s contribution limits. §2809(d). In addition to the negative effect on “amassing funds” that we have described, see supra, at 18–21, the Act would severely limit the ability of a party to assist its candidates’ campaigns by engaging in coordinated spending on advertising, candidate events, voter lists, mass mailings, even yard signs. And, to an unusual degree, it would discourage those who wish to contribute small amounts of money to a party, amounts that easily comply with individual contribution limits. Suppose that many individuals do not know Vermont legislative candidates personally, but wish to contribute, say, $20 or $40, to the State Republican Party, with the intent that the party use the money to help elect whichever candidates the party believes would best advance its ideals and interests—the basic object of a political party. Or, to take a more extreme example, imagine that 6,000 Vermont citizens each want to give $1 to the State Democratic Party because, though unfamiliar with the details of the individual races, they would like to make a small financial contribution to the goal of electing a Democratic state legislature. And further imagine that the party believes control of the legislature will depend on the outcome of three (and only three) House races. The Act forbids the party from giving $2,000 (of the $6,000) to each of its candidates in those pivotal races. Indeed, it permits the party to give no more than $200 to each candidate, thereby thwarting the aims of the 6,000 donors from making a meaningful contribution to state politics by giving a small amount of money to the party they support. Thus, the Act would severely inhibit collective political activity by preventing a political party from using contributions by small donors to provide meaningful assistance to any individual candidate. See supra, at 19. We recognize that we have previously upheld limits on contributions from political parties to candidates, in particular the federal limits on coordinated party spending. Colorado II, 533 U. S. 431. And we also recognize that any such limit will negatively affect to some extent the fund-allocating party function just described. But the contribution limits at issue in Colorado II were far less problematic, for they were significantly higher than Act 64’s limits. See id., at 438–439, and n. 3, 442, n. 7 (at least $67,560 in coordinated spending and $5,000 in direct cash contributions for U. S. Senate candidates, at least $33,780 in coordinated spending and $5,000 in direct cash contributions for U. S. House candidates). And they were much higher than the federal limits on contributions from individuals to candidates, thereby reflecting an effort by Congress to balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties “to circumvent contribution limits that apply to individuals.” Id., at 453. Act 64, by placing identical limits upon contributions to candidates, whether made by an individual or by a political party, gives to the former consideration no weight at all. We consequently agree with the District Court that the Act’s contribution limits “would reduce the voice of political parties” in Vermont to a “whisper.” 118 F. Supp. 2d, at 487. And we count the special party-related harms that Act 64 threatens as a further factor weighing against the constitutional validity of the contribution limits. Third, the Act’s treatment of volunteer services aggravates the problem. Like its federal statutory counterpart, the Act excludes from its definition of “contribution” all “services provided without compensation by individuals volunteering their time on behalf of a candidate.” Vt. Stat. Ann., Tit. 17, §2801(2) (2002). Cf. 2 U. S. C. §431(8)(B)(i) (2000 ed. and Supp. III) (similar exemption in federal campaign finance statute). But the Act does not exclude the expenses those volunteers incur, such as travel expenses, in the course of campaign activities. The Act’s broad definitions would seem to count those expenses against the volunteer’s contribution limit, at least where the spending was facilitated or approved by campaign officials. Vt. Stat. Ann., Tit. 17, §2801(3) (2002) (“[E]xpenditure” includes “anything of value, paid … for the purpose of influencing an election”); §§2809(a), (c) (Any “expenditure … intentionally facilitated by, solicited by or approved by the candidate” counts as a “contribution”). And, unlike the Federal Government’s treatment of comparable requirements, the State has not (insofar as we are aware) created an exception excluding such expenses. Cf. 2 U. S. C. §§431(8)(B)(iv), (ix) (2000 ed. and Supp. III) (excluding from the definition of “contribution” volunteer travel expenses up to $1,000 and payment by political party for campaign materials used in connection with volunteer activities). The absence of some such exception may matter in the present context, where contribution limits are very low. That combination, low limits and no exceptions, means that a gubernatorial campaign volunteer who makes four or five round trips driving across the State performing volunteer activities coordinated with the campaign can find that he or she is near, or has surpassed, the contribution limit. So too will a volunteer who offers a campaign the use of her house along with coffee and doughnuts for a few dozen neighbors to meet the candidate, say, two or three times during a campaign. Cf. Vt. Stat. Ann., Tit. 17, §2809(d) (2002) (excluding expenditures for such activities only up to $100). Such supporters will have to keep careful track of all miles driven, postage supplied (500 stamps equals $200), pencils and pads used, and so forth. And any carelessness in this respect can prove costly, perhaps generating a headline, “Campaign laws violated,” that works serious harm to the candidate. These sorts of problems are unlikely to affect the constitutionality of a limit that is reasonably high. Cf. Buckley, 424 U. S., at 36–37 (Coordinated expenditure by a volunteer “provides material financial assistance to a candidate,” and therefore “may properly be viewed as a contribution”). But Act 64’s contribution limits are so low, and its definition of “contribution” so broad, that the Act may well impede a campaign’s ability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. id., at 22 (Federal contribution limits “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates”). Again, the very low limits at issue help to transform differences in degree into difference in kind. And the likelihood of unjustified interference in the present context is sufficiently great that we must consider the lack of tailoring in the Act’s definition of “contribution” as an added factor counting against the constitutional validity of the contribution limits before us. Fourth, unlike the contribution limits we upheld in Shrink, see supra, at 16, Act 64’s contribution limits are not adjusted for inflation. Its limits decline in real value each year. Indeed, in real dollars the Act’s limits have already declined by about 20% ($200 in 2006 dollars has a real value of $160.66 in 1997 dollars). A failure to index limits means that limits which are already suspiciously low, see supra, at 14–17, will almost inevitably become too low over time. It means that future legislation will be necessary to stop that almost inevitable decline, and it thereby imposes the burden of preventing the decline upon incumbent legislators who may not diligently police the need for changes in limit levels to assure the adequate financing of electoral challenges. Fifth, we have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere. Indeed, other things being equal, one might reasonably believe that a contribution of say, $250 (or $450) to a candidate’s campaign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases we have considered. See supra, at 15–17. These five sets of considerations, taken together, lead us to conclude that Act 64’s contribution limits are not narrowly tailored. Rather, the Act burdens First Amendment interests by threatening to inhibit effective advocacy by those who seek election, particularly challengers; its contribution limits mute the voice of political parties; they hamper participation in campaigns through volunteer activities; and they are not indexed for inflation. Vermont does not point to a legitimate statutory objective that might justify these special burdens. We understand that many, though not all, campaign finance regulations impose certain of these burdens to some degree. We also understand the legitimate need for constitutional leeway in respect to legislative line-drawing. But our discussion indicates why we conclude that Act 64 in this respect nonetheless goes too far. It disproportionately burdens numerous First Amendment interests, and consequently, in our view, violates the First Amendment. We add that we do not believe it possible to sever some of the Act’s contribution limit provisions from others that might remain fully operative. See Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932) (“invalid part may be dropped if what is left is fully operative as a law”); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999) (severability “essentially an inquiry into legislative intent”); Vt. Stat. Ann., Tit. 1, §215 (2003) (severability principles apply to Vermont statutes). To sever provisions to avoid constitutional objection here would require us to write words into the statute (inflation indexing), or to leave gaping loopholes (no limits on party contributions), or to foresee which of many different possible ways the legislature might respond to the constitutional objections we have found. Given these difficulties, we believe the Vermont Legislature would have intended us to set aside the statute’s contribution limits, leaving the legislature free to rewrite those provisions in light of the constitutional difficulties we have identified. IV We conclude that Act 64’s expenditure limits violate the First Amendment as interpreted in Buckley v. Valeo. We also conclude that the specific details of Act 64’s contribution limits require us to hold that those limits violate the First Amendment, for they burden First Amendment interests in a manner that is disproportionate to the public purposes they were enacted to advance. Given our holding, we need not, and do not, examine the constitutionality of the statute’s presumption that certain party expenditures are coordinated with a candidate. Vt. Stat. Ann., Tit. 17, §2809(d) (2002). Accordingly, the judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings. It is so ordered.
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547.US.715
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As relevant here, the Clean Water Act (CWA or Act) makes it unlawful to discharge dredged or fill material into “navigable waters” without a permit, 33 U. S. C. §§1311(a), 1342(a), and defines “navigable waters” as “the waters of the United States, including the territorial seas,” §1362(7). The Army Corps of Engineers (Corps), which issues permits for the discharge of dredged or fill material into navigable waters, interprets “the waters of the United States” expansively to include not only traditional navigable waters, 33 CFR §328.3(a)(1), but also other defined waters, §328.3(a)(2), (3); “[t]ributaries” of such waters, §328.3(a)(5); and wetlands “adjacent” to such waters and tributaries, §328.3(a)(7). “[A]djacent” wetlands include those “bordering, contiguous [to], or neighboring” waters of the United States even when they are “separated from [such] waters … by man-made dikes … and the like.” §328.3(c). These cases involve four Michigan wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters. In No. 04–1034, the United States brought civil enforcement proceedings against the Rapanos petitioners, who had backfilled three of the areas without a permit. The District Court found federal jurisdiction over the wetlands because they were adjacent to “waters of the United States” and held petitioners liable for CWA violations. Affirming, the Sixth Circuit found federal jurisdiction based on the sites’ hydrologic connections to the nearby ditches or drains, or to more remote navigable waters. In No. 04–1384, the Carabell petitioners were denied a permit to deposit fill in a wetland that was separated from a drainage ditch by an impermeable berm. The Carabells sued, but the District Court found federal jurisdiction over the site. Affirming, the Sixth Circuit held that the wetland was adjacent to navigable waters. Held: The judgments are vacated, and the cases are remanded. No. 04–1034, 376 F. 3d 629, and No. 04–1384, 391 F. 3d 704, vacated and remanded. Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded: 1. The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of that phrase is thus not “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. Pp. 12–21. (a) While the meaning of “navigable waters” in the CWA is broader than the traditional definition found in The Daniel Ball, 10 Wall. 557, see Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167 (SWANCC); United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 133, the CWA authorizes federal jurisdiction only over “waters.” The use of the definite article “the” and the plural number “waters” show plainly that §1362(7) does not refer to water in general, but more narrowly to water “[a]s found in streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.). Those terms all connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Pp. 12–15. (b) The Act’s use of the traditional phrase “navigable waters” further confirms that the CWA confers jurisdiction only over relatively permanent bodies of water. Traditionally, such “waters” included only discrete bodies of water, and the term still carries some of its original substance, SWANCC, supra, at 172. This Court’s subsequent interpretation of “the waters of the United States” in the CWA likewise confirms this limitation. See, e.g., Riverside Bayview, supra, at 131. And the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from “navigable waters,” including them in the definition of “ ‘point sources,’ ” 33 U. S. C. §1362(14). Moreover, only the foregoing definition of “waters” is consistent with CWA’s stated policy “to recognize, preserve, and protect the primary responsibilities and rights of the States … to plan the development and use … of land and water resources … .” §1251(b). In addition, “the waters of the United States” hardly qualifies as the clear and manifest statement from Congress needed to authorize intrusion into such an area of traditional state authority as land-use regulation; and to authorize federal action that stretches the limits of Congress’s commerce power. See SWANCC, supra, at 173. Pp. 15–21. 2. A wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection. Riverside Bayview rested on an inherent ambiguity in defining where the “water” ends and its abutting (“adjacent”) wetlands begin, permitting the Corps to rely on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds are not “waters of the United States” in their own right, see SWANCC, supra, at 167, 171, and present no boundary-drawing problem justifying the invocation of such ecological factors. Thus, only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between the two, are “adjacent” to such waters and covered by the Act. Establishing coverage of the Rapanos and Carabell sites requires finding that the adjacent channel contains a relatively permanent “wate[r] of the United States,” and that each wetland has a continuous surface connection to that water, making it difficult to determine where the water ends and the wetland begins. Pp. 21–24. 3. Because the Sixth Circuit applied an incorrect standard to determine whether the wetlands at issue are covered “waters,” and because of the paucity of the record, the cases are remanded for further proceedings. P. 39. Justice Kennedy concluded that the Sixth Circuit correctly recognized that a water or wetland constitutes “navigable waters” under the Act if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made, Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167, 172 (SWANCC), but did not consider all the factors necessary to determine that the lands in question had, or did not have, the requisite nexus. United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, and SWANCC establish the framework for the inquiry here. The nexus required must be assessed in terms of the Act’s goals and purposes. Congress enacted the law to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a), and it pursued that objective by restricting dumping and filling in “waters of the United States,” §§1311(a), 1362(12). The rationale for the Act’s wetlands regulation, as the Corps has recognized, is that wetlands can perform critical functions related to the integrity of other waters—such as pollutant trapping, flood control, and runoff storage. 33 C. F. R. §320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense. When, in contrast, their effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the term “navigable waters.” Because the Corps’ theory of jurisdiction in these cases—adjacency to tributaries, however remote and insubstantial—goes beyond the Riverside Bayview holding, its assertion of jurisdiction cannot rest on that case. The breadth of the Corps’ existing standard for tributaries—which seems to leave room for regulating drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes toward it—precludes that standard’s adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Absent more specific regulations, the Corps must establish a significant nexus on a case-by-case basis when seeking to regulate wetlands based on adjacency to nonnavigable tributaries, in order to avoid unreasonable applications of the Act. In the instant cases the record contains evidence pointing to a possible significant nexus, but neither the agency nor the reviewing courts considered the issue in these terms. Thus, the cases should be remanded for further proceedings. Pp. 1–30. Scalia, J., announced the judgment of the Court, and delivered an opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion. Together with No. 04–1384, Carabell et al. v. United States Army Corps of Engineers et al., also on certiorari to the same court.
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in which The Chief Justice, Justice Thomas, and Justice Alito join. In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. 339 F. 3d 447, 449 (CA6 2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. §1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued. The burden of federal regulation on those who would deposit fill material in locations denominated “waters of the United States” is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR §320.4(a) (2004).[Footnote 1] The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes. Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74–76 (2002). “[O]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits.” Id., at 81. These costs cannot be avoided, because the Clean Water Act “impose[s] criminal liability,” as well as steep civil fines, “on a broad range of ordinary industrial and commercial activities.” Hanousek v. United States, 528 U. S. 1102, 1103 (2000) (Thomas, J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines. See United States v. Rapanos, 235 F. 3d 256, 260 (CA6 2000). The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over “the waters of the United States” to cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit—whether man-made or natural, broad or narrow, permanent or ephemeral—through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a “water of the United States.” I Congress passed the Clean Water Act (CWA or Act) in 1972. The Act’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816, 33 U. S. C. §1251(a). The Act also states that “[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.” §1251(b). One of the statute’s principal provisions is 33 U. S. C. §1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” §1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil, . . . rock, sand, [and] cellar dirt,” §1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” §1362(7). The Act also provides certain exceptions to its prohibition of “the discharge of any pollutant by any person.” §1311(a). Section 1342(a) authorizes the Administrator of the EPA to “issue a permit for the discharge of any pollutant, … notwithstanding section 1311(a) of this title.” Section 1344 authorizes the Secretary of the Army, acting through the Corps, to “issue permits … for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” §1344(a), (d). It is the discharge of “dredged or fill material”—which, unlike traditional water pollutants, are solids that do not readily wash downstream—that we consider today. For a century prior to the CWA, we had interpreted the phrase “navigable waters of the United States” in the Act’s predecessor statutes to refer to interstate waters that are “navigable in fact” or readily susceptible of being rendered so. The Daniel Ball, 10 Wall. 557, 563 (1871); see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 (1940). After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” See 39 Fed. Reg. 12119, codified at 33 CFR §209.120(d)(1) (1974); see also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (2001) (SWANCC). After a District Court enjoined these regulations as too narrow, Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975), the Corps adopted a far broader definition. See 40 Fed. Reg. 31324–31325 (1975); 42 Fed. Reg. 37144 (1977). The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power. See id., at 37144, n. 2. The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR §328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” §328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” §328.3(a)(3); “[t]ributaries of [such] waters,” §328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” §328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. §328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ ” Ibid. We first addressed the proper interpretation of 33 U. S. C. §1362(7)’s phrase “the waters of the United States” in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). That case concerned a wetland that “was adjacent to a body of navigable water,” because “the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to … a navigable waterway.” Id., at 131; see also 33 CFR §328.3(b) (2004). Noting that “the transition from water to solid ground is not necessarily or even typically an abrupt one,” and that “the Corps must necessarily choose some point at which water ends and land begins,” 474 U. S., at 132, we upheld the Corps’ interpretation of “the waters of the United States” to include wetlands that “actually abut[ted] on” traditional navigable waters. Id., at 135. Following our decision in Riverside Bayview, the Corps adopted increasingly broad interpretations of its own regulations under the Act. For example, in 1986, to “clarify” the reach of its jurisdiction, the Corps announced the so-called “Migratory Bird Rule,” which purported to extend its jurisdiction to any intrastate waters “[w]hich are or would be used as habitat” by migratory birds. 51 Fed. Reg. 41217; see also SWANCC, supra, at 163–164. In addition, the Corps interpreted its own regulations to include “ephemeral streams” and “drainage ditches” as “tributaries” that are part of the “waters of the United States,” see 33 CFR §328.3(a)(5), provided that they have a perceptible “ordinary high water mark” as defined in §328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended “the waters of the United States” to virtually any land feature over which rainwater or drainage passes and leaves a visible mark—even if only “the presence of litter and debris.” 33 CFR §328.3(e). See also U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Juris- diction, GAO–04–297, pp. 20–22 (Feb. 2004) (hereinafter GAO Report), http://www.gao.gov/new.items/d04297.pdf (all Internet materials as visited June 9, 2006, and available in Clerk of Court’s case file). Prior to our decision in SWANCC, lower courts upheld the application of this expansive definition of “tributaries” to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United States v. Eidson, 108 F. 3d 1336, 1340–1342 (CA11 1997), and dry arroyos connected to remote waters through the flow of groundwater over “centuries,” Quivira Mining Co. v. EPA, 765 F. 2d 126, 129 (CA10 1985). In SWANCC, we considered the application of the Corps’ “Migratory Bird Rule” to “an abandoned sand and gravel pit in northern Illinois.” 531 U. S., at 162. Observing that “[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview,” id., at 167 (emphasis added), we held that Riverside Bayview did not establish “that the jurisdiction of the Corps extends to ponds that are not adjacent to open water.” 531 U. S., at 168 (emphasis deleted). On the contrary, we held that “nonnavigable, isolated, intrastate waters,” id., at 171—which, unlike the wetlands at issue in Riverside Bayview, did not “actually abu[t] on a navigable waterway,” 531 U. S., at 167—were not included as “waters of the United States.” Following our decision in SWANCC, the Corps did not significantly revise its theory of federal jurisdiction under §1344(a). The Corps provided notice of a proposed rulemaking in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations. Because SWANCC did not directly address tributaries, the Corps notified its field staff that they “should continue to assert jurisdiction over traditional navigable waters … and, generally speaking, their tributary systems (and adjacent wetlands).” 68 Fed. Reg. 1998. In addition, because SWANCC did not overrule Riverside Bayview, the Corps continues to assert jurisdiction over waters “ ‘neighboring’ ” traditional navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting 33 CFR §328.3(c) (2003)). Even after SWANCC, the lower courts have continued to uphold the Corps’ sweeping assertions of jurisdiction over ephemeral channels and drains as “tributaries.” For example, courts have held that jurisdictional “tributaries” include the “intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under I–64),” Treacy v. Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a “roadside ditch” whose water took “a winding, thirty-two-mile path to the Chesapeake Bay,” United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003); irrigation ditches and drains that intermittently connect to covered waters, Community Assn. for Restoration of Environment v. Henry Bosma Dairy, 305 F. 3d 943, 954–955 (CA9 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9 2001); and (most implausibly of all) the “washes and arroyos” of an “arid development site,” located in the middle of the desert, through which “water courses . . . during periods of heavy rain,” Save Our Sonoran, Inc. v. Flowers, 408 F. 3d 1113, 1118 (CA9 2005).[Footnote 2] These judicial constructions of “tributaries” are not outliers. Rather, they reflect the breadth of the Corps’ determinations in the field. The Corps’ enforcement practices vary somewhat from district to district because “the definitions used to make jurisdictional determinations” are deliberately left “vague.” GAO Report 26; see also id., at 22. But district offices of the Corps have treated, as “waters of the United States,” such typically dry land features as “arroyos, coulees, and washes,” as well as other “channels that might have little water flow in a given year.” Id., at 20–21. They have also applied that definition to such manmade, intermittently flowing features as “drain tiles, storm drains systems, and culverts.” Id., at 24 (footnote omitted). In addition to “tributaries,” the Corps and the lower courts have also continued to define “adjacent” wetlands broadly after SWANCC. For example, some of the Corps’ district offices have concluded that wetlands are “adjacent” to covered waters if they are hydrologically connected “through directional sheet flow during storm events,” GAO Report 18, or if they lie within the “100-year floodplain” of a body of water—that is, they are connected to the navigable water by flooding, on average, once every 100 years, id., at 17, and n. 16. Others have concluded that presence within 200 feet of a tributary automatically renders a wetland “adjacent” and jurisdictional. Id., at 19. And the Corps has successfully defended such theories of “adjacency” in the courts, even after SWANCC’s excision of “isolated” waters and wetlands from the Act’s coverage. One court has held since SWANCC that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a “significant nexus” to covered waters because, inter alia, they lay “within the 100 year floodplain of tidal waters.” Baccarat Fremont Developers, LLC v. Army Corps of Engineers, 425 F. 3d 1150, 1152, 1157 (CA9 2005). In one of the cases before us today, the Sixth Circuit held, in agreement with “[t]he majority of courts,” that “while a hydrological connection between the non-navigable and navigable waters is required, there is no ‘direct abutment’ requirement” under SWANCC for “ ‘adjacency.’ ” 376 F. 3d 629, 639 (2004) (Rapanos II). And even the most insubstantial hydrologic connection may be held to constitute a “significant nexus.” One court distinguished SWANCC on the ground that “a molecule of water residing in one of these pits or ponds [in SWANCC] could not mix with molecules from other bodies of water”—whereas, in the case before it, “water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies,” and “[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river].” United States v. Rueth Development Co., 189 F. Supp. 2d 874, 877–878 (ND Ind. 2002). II In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act. Petitioners in No. 04–1034, the Rapanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the “Salzburg site,” the “Hines Road site,” and the “Pine River site.” The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. See Brief for United States in No. 04–1034, p. 11; 339 F. 3d, at 449. The wetlands at the Hines Road site are connected to something called the “Rose Drain,” which has a surface connection to the Tittabawassee River. App. to Pet. for Cert. in No. 04–1034, pp. A23, B20. And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron. Id., at A23–A24, B26. It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water. The United States brought civil enforcement proceedings against the Rapanos petitioners. The District Court found that the three described wetlands were “within federal jurisdiction” because they were “adjacent to other waters of the United States,” and held petitioners liable for violations of the CWA at those sites. Id., at B32–B35. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the wetlands at all three sites because “there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters.” 376 F. 3d, at 643. Petitioners in No. 04–1384, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair. See App. to Pet. for Cert. in No. 04–1384, pp. 2a–3a. After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site. The District Court ruled that there was federal jurisdiction because the wetland “is adjacent to neighboring tributaries of navigable waters and has a significant nexus to ‘waters of the United States.’ ” Id., at 49a. Again the Sixth Circuit affirmed, holding that the Carabell wetland was “adjacent” to navigable waters. 391 F. 3d 704, 708 (2004) (Carabell). We granted certiorari and consolidated the cases, 546 U. S. ___ (2005), to decide whether these wetlands constitute “waters of the United States” under the Act, and if so, whether the Act is constitutional. III The Rapanos petitioners contend that the terms “navigable waters” and “waters of the United States” in the Act must be limited to the traditional definition of The Daniel Ball, which required that the “waters” be navigable in fact, or susceptible of being rendered so. See 10 Wall., at 563. But this definition cannot be applied wholesale to the CWA. The Act uses the phrase “navigable waters” as a defined term, and the definition is simply “the waters of the United States.” 33 U. S. C. §1362(7). Moreover, the Act provides, in certain circumstances, for the substitution of state for federal jurisdiction over “navigable waters … other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce … including wetlands adjacent thereto.” §1344(g)(1) (emphasis added). This provision shows that the Act’s term “navigable waters” includes something more than traditional navigable waters. We have twice stated that the meaning of “navigable waters” in the Act is broader than the traditional understanding of that term, SWANCC, 531 U. S., at 167; Riverside Bayview, 474 U. S., at 133.[Footnote 3] We have also emphasized, however, that the qualifier “navigable” is not devoid of significance, SWANCC, supra, at 172. We need not decide the precise extent to which the qualifiers “navigable” and “of the United States” restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over “waters.” 33 U. S. C. §1362(7). The only natural definition of the term “waters,” our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court’s canons of construction all confirm that “the waters of the United States” in §1362(7) cannot bear the expansive meaning that the Corps would give it. The Corps’ expansive approach might be arguable if the CSA defined “navigable waters” as “water of the United States.” But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) show plainly that §1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second).[Footnote 4] On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water.[Footnote 5] The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely “streams,” connotes a continuous flow of water in a permanent channel—especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.”[Footnote 6] None of these terms encompasses transitory puddles or ephemeral flows of water. The restriction of “the waters of the United States” to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land Is Waters” approach to federal jurisdiction. In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water. The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531 U. S., at 180 (Stevens, J., dissenting). On the traditional understanding, “navigable waters” included only discrete bodies of water. For example, in The Daniel Ball, we used the terms “waters” and “rivers” interchangeably. 10 Wall., at 563. And in Appalachian Electric, we consistently referred to the “navigable waters” as “waterways.” 311 U. S., at 407–409. Plainly, because such “waters” had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows. As we noted in SWANCC, the traditional term “navigable waters”—even though defined as “the waters of the United States”—carries some of its original substance: “[I]t is one thing to give a word limited effect and quite another to give it no effect whatever.” 531 U. S., at 172. That limited effect includes, at bare minimum, the ordinary presence of water. Our subsequent interpretation of the phrase “the waters of the United States” in the CWA likewise confirms this limitation of its scope. In Riverside Bayview, we stated that the phrase in the Act referred primarily to “rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters’ ” than the wetlands adjacent to such features. 474 U. S., at 131 (emphasis added). We thus echoed the dictionary definition of “waters” as referring to “streams and bodies forming geographical features such as oceans, rivers, [and] lakes.” Webster’s Second 2882 (emphasis added). Though we upheld in that case the inclusion of wetlands abutting such a “hydrographic featur[e]”—principally due to the difficulty of drawing any clear boundary between the two, see 474 U. S., at 132; Part IV, infra—nowhere did we suggest that “the waters of the United States” should be expanded to include, in their own right, entities other than “hydrographic features more conventionally identifiable as ‘waters.’ ” Likewise, in both Riverside Bayview and SWANCC, we repeatedly described the “navigable waters” covered by the Act as “open water” and “open waters.” See Riverside Bayview, supra, at 132, and n. 8, 134; SWANCC, supra, at 167, 172. Under no rational interpretation are typically dry channels described as “open waters.” Most significant of all, the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from “navigable waters,” by including them in the definition of “ ‘point source.’ ” The Act defines “ ‘point source’ ” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. §1362(14). It also defines “ ‘discharge of a pollutant’ ” as “any addition of any pollutant to navigable waters from any point source.” §1362(12)(A) (emphases added). The definitions thus conceive of “point sources” and “navigable waters” as separate and distinct categories. The definition of “discharge” would make little sense if the two categories were significantly overlapping. The separate classification of “ditch[es], channel[s], and conduit[s]”—which are terms ordinarily used to describe the watercourses through which intermittent waters typically flow—shows that these are, by and large, not “waters of the United States.”[Footnote 7] Moreover, only the foregoing definition of “waters” is consistent with the CWA’s stated “policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources … .” §1251(b). This statement of policy was included in the Act as enacted in 1972, see 86 Stat. 816, prior to the addition of the optional state administration program in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly referred to something beyond the subsequently added state administration program of 33 U. S. C. §1344(g)–(l). But the expansive theory advanced by the Corps, rather than “preserv[ing] the primary rights and responsibilities of the States,” would have brought virtually all “plan[ning of] the development and use . . . of land and water resources” by the States under federal control. It is therefore an unlikely reading of the phrase “the waters of the United States.”[Footnote 8] Even if the phrase “the waters of the United States” were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps’ interpretation of the statute is impermissible. As we noted in SWANCC, the Government’s expansive interpretation would “result in a significant impingement of the States’ traditional and primary power over land and water use.” 531 U. S., at 174. Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these cases, is a quintessential state and local power. See FERC v. Mississippi, 456 U. S. 742, 768, n. 30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994). The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land—an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board. See 33 CFR §320.4(a)(1) (2004). We ordinarily expect a “clear and manifest” statement from Congress to authorize an unprecedented intrusion into traditional state authority. See BFP v. Resolution Trust Corporation, 511 U. S. 531, 544 (1994). The phrase “the waters of the United States” hardly qualifies. Likewise, just as we noted in SWANCC, the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power. See 531 U. S., at 173. (In developing the current regulations, the Corps consciously sought to extend its authority to the farthest reaches of the commerce power. See 42 Fed. Reg. 37127 (1977).) Even if the term “the waters of the United States” were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).[Footnote 9] In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the “the waters of the United States” is thus not “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). IV In Carabell, the Sixth Circuit held that the nearby ditch constituted a “tributary” and thus a “water of the United States” under 33 CFR §328.3(a)(5) (2004). See 391 F. 3d, at 708–709. Likewise in Rapanos, the Sixth Circuit held that the nearby ditches were “tributaries” under §328(a)(5). 376 F. 3d, at 643. But Rapanos II also stated that, even if the ditches were not “waters of the United States,” the wetlands were “adjacent” to remote traditional navigable waters in virtue of the wetlands’ “hydrological connection” to them. See id., at 639–640. This statement reflects the practice of the Corps’ district offices, which may “assert jurisdiction over a wetland without regulating the ditch connecting it to a water of the United States.” GAO Report 23. We therefore address in this Part whether a wetland may be considered “adjacent to” remote “waters of the United States,” because of a mere hydrologic connection to them. In Riverside Bayview, we noted the textual difficulty in including “wetlands” as a subset of “waters”: “On a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet or otherwise, as ‘waters.’ ” 474 U. S., at 132. We acknowledged, however, that there was an inherent ambiguity in drawing the boundaries of any “waters”: “[T]he Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of ‘waters’ is far from obvious.” Ibid. Because of this inherent ambiguity, we deferred to the agency’s inclusion of wetlands “actually abut[ting]” traditional navigable waters: “Faced with such a problem of defining the bounds of its regulatory authority,” we held, the agency could reasonably conclude that a wetland that “adjoin[ed]” waters of the United States is itself a part of those waters. Id., at 132, 135, and n. 9. The difficulty of delineating the boundary between water and land was central to our reasoning in the case: “In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” Id., at 134 (emphasis added).[Footnote 10] When we characterized the holding of Riverside Bayview in SWANCC, we referred to the close connection between waters and the wetlands that they gradually blend into: “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” 531 U. S., at 167 (emphasis added). In particular, SWANCC rejected the notion that the ecological considerations upon which the Corps relied in Riverside Bayview—and upon which the dissent repeatedly relies today, see post, at 10–11, 12, 13–14, 15, 18–19, 21–22, 24–25—provided an independent basis for including entities like “wetlands” (or “ephemeral streams”) within the phrase “the waters of the United States.” SWANCC found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps’ jurisdiction. It thus confirmed that Riverside Bayview rested upon the inherent ambiguity in defining where water ends and abutting (“adjacent”) wetlands begin, permitting the Corps’ reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds were not “waters of the United States” in their own right, see 531 U. S., at 167, 171, and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such. Therefore, only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to “waters of the United States” do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a “significant nexus” in SWANCC. 531 U. S., at 167. Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: First, that the adjacent channel contains a “wate[r] of the United States,” (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins. V Respondents and their amici urge that such restrictions on the scope of “navigable waters” will frustrate enforcement against traditional water polluters under 33 U. S. C. §§1311 and 1342. Because the same definition of “navigable waters” applies to the entire statute, respondents contend that water polluters will be able to evade the permitting requirement of §1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters. See Tr. of Oral Arg. 74–75. That is not so. Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of §1342, inasmuch as lower courts applying §1342 have not characterized intermittent channels as “waters of the United States.” The Act does not forbid the “addition of any pollutant directly to navigable waters from any point source,” but rather the “addition of any pollutant to navigable waters.” §1362(12)(A) (emphasis added); §1311(a). Thus, from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates §1311(a), even if the pollutants discharged from a point source do not emit “directly into” covered waters, but pass “through conveyances” in between. United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 946–947 (WD Tenn. 1976) (a municipal sewer system separated the “point source” and covered navigable waters). See also Sierra Club v. El Paso Gold Mines, Inc., 421 F. 3d 1133, 1137, 1141 (CA10 2005) (2.5 miles of tunnel separated the “point source” and “navigable waters”). In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute “point sources” under the Act. The definition of “point source” includes “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. §1362(14). We have held that the Act “makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters.’ ” South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 105 (2004). Cases holding the intervening channel to be a point source include United States v. Ortiz, 427 F. 3d 1278, 1281 (CA10 2005) (a storm drain that carried flushed chemicals from a toilet to the Colorado River was a “point source”), and Dague v. Burlington, 935 F. 2d 1343, 1354–1355 (CA2 1991) (a culvert connecting two bodies of navigable water was a “point source”), rev’d on other grounds, 505 U. S. 557 (1992). Some courts have even adopted both the “indirect discharge” rationale and the “point source” rationale in the alternative, applied to the same facts. See, e.g., Concerned Area Residents for Environment v. Southview Farm, 34 F. 3d 114, 118–119 (CA2 1994). On either view, however, the lower courts have seen no need to classify the intervening conduits as “waters of the United States.” In contrast to the pollutants normally covered by the permitting requirement of §1342(a), “dredged or fill material,” which is typically deposited for the sole purpose of staying put, does not normally wash downstream,[Footnote 11] and thus does not normally constitute an “addition … to navigable waters” when deposited in upstream isolated wetlands. §§1344(a), 1362(12). The Act recognizes this distinction by providing a separate permitting program for such discharges in §1344(a). It does not appear, therefore, that the interpretation we adopt today significantly reduces the scope of §1342 of the Act. Respondents also urge that the narrower interpretation of “waters” will impose a more difficult burden of proof in enforcement proceedings under §§1311(a) and 1342(a), by requiring the agency to demonstrate the downstream flow of the pollutant along the intermittent channel to traditional “waters.” See Tr. of Oral Arg. 57. But, as noted above, the lower courts do not generally rely on characterization of intervening channels as “waters of the United States” in applying §1311 to the traditional pollutants subject to §1342. Moreover, the proof of downstream flow of pollutants required under §1342 appears substantially similar, if not identical, to the proof of a hydrologic connection that would be required, on the Sixth Circuit’s theory of jurisdiction, to prove that an upstream channel or wetland is a “wate[r] of the United States.” See Rapanos II, 376 F. 3d, at 639. Compare, e.g., App. to Pet. for Cert. in No. 04–1034, at B11, B20, B26 (testimony of hydrologic connections based on observation of surface water connections), with Southview Farm, supra, at 118–121 (testimony of discharges based on observation of the flow of polluted water). In either case, the agency must prove that the contaminant-laden waters ultimately reach covered waters. Finally, respondents and many amici admonish that narrowing the definition of “the waters of the United States” will hamper federal efforts to preserve the Nation’s wetlands. It is not clear that the state and local conservation efforts that the CWA explicitly calls for, see 33 U. S. C. §1251(b), are in any way inadequate for the goal of preservation. In any event, a Comprehensive National Wetlands Protection Act is not before us, and the “wis[dom]” of such a statute, post, at 19 (opinion of Stevens, J.), is beyond our ken. What is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only “the waters of the United States.” VI In an opinion long on praise of environmental protection and notably short on analysis of the statutory text and structure, the dissent would hold that “the waters of the United States” include any wetlands “adjacent” (no matter how broadly defined) to “tributaries” (again, no matter how broadly defined) of traditional navigable waters. For legal support of its policy-laden conclusion, the dissent relies exclusively on two sources: “[o]ur unanimous opinion in Riverside Bayview,” post, at 6; and “Congress’ deliberate acquiescence in the Corps’ regulations in 1977,” post, at 11. Each of these is demonstrably inadequate to support the apparently limitless scope that the dissent would permit the Corps to give to the Act. A The dissent’s assertion that Riverside Bayview “squarely controls these cases,” post, at 6, is wholly implausible. First, Riverside Bayview could not possibly support the dissent’s acceptance of the Corps’ inclusion of dry beds as “tributaries,” post, at 19, because the definition of tributaries was not at issue in that case. Riverside Bayview addressed only the Act’s inclusion of wetlands abutting navigable-in-fact waters, and said nothing at all about what non-navigable tributaries the Act might also cover. Riverside Bayview likewise provides no support for the dissent’s complacent acceptance of the Corps’ definition of “adjacent,” which (as noted above) has been extended beyond reason to include, inter alia, the 100-year floodplain of covered waters. See supra, at 9. The dissent notes that Riverside Bayview quoted without comment the Corps’ description of “adjacent” wetlands as those “that form the border of or are in reasonable proximity to other waters of the United States.” Post, at 8 (citing 474 U. S., at 134 (quoting 42 Fed. Reg. 37128)). As we have already discussed, this quotation provides no support for the inclusion of physically unconnected wetlands as covered “waters.” See supra, at 22–23, n. 10. The dissent relies principally on a footnote in Riverside Bayview recognizing that “ ‘not every adjacent wetland is of great importance to the environment of adjoining bodies of water,’ ” and that all “ ‘adjacent’ ” wetlands are nevertheless covered by the Act, post, at 8 (quoting 474 U. S., at 135, n. 9). Of course, this footnote says nothing to support the dissent’s broad definition of “adjacent”—quite the contrary, the quoted sentence uses “adjacent” and “adjoining” interchangeably, and the footnote qualifies a sentence holding that the wetland was covered “[b]ecause” it “actually abut[ted] on a navigable waterway.” Id., at 135 (emphasis added). Moreover, that footnote’s assertion that the Act may be interpreted to include even those adjoining wetlands that are “lacking in importance to the aquatic environment,” id., at 135, n. 9, confirms that the scope of ambiguity of “the waters of the United States” is determined by a wetland’s physical connection to covered waters, not its ecological relationship thereto. The dissent reasons (1) that Riverside Bayview held that “the waters of the United States” include “adjacent wetlands,” and (2) we must defer to the Corps’ interpretation of the ambiguous word “adjacent.” Post, at 20–21. But this is mere legerdemain. The phrase “adjacent wetlands” is not part of the statutory definition that the Corps is authorized to interpret, which refers only to “the waters of the United States,” 33 U. S. C. §1362(7).[Footnote 12] In expounding the term “adjacent” as used in Riverside Bayview, we are explaining our own prior use of that word to interpret the definitional phrase “the waters of the United States.” However ambiguous the term may be in the abstract, as we have explained earlier, “adjacent” as used in Riverside Bayview is not ambiguous between “physically abutting” and merely “nearby.” See supra, at 21–23. The dissent would distinguish SWANCC on the ground that it “had nothing to say about wetlands,” post, at 9—i.e., it concerned “isolated ponds” rather than isolated wetlands. This is the ultimate distinction without a difference. If isolated “permanent and seasonal ponds of varying size … and depth,” 531 U. S., at 163—which, after all, might at least be described as “waters” in their own right—did not constitute “waters of the United States,” a fortiori, isolated swampy lands do not constitute “waters of the United States.” See also 474 U. S., at 132. As the author of today’s dissent has written, “[i]f, as I believe, actually navigable waters lie at the very heart of Congress’ commerce power and ‘isolated,’ nonnavigable waters lie closer to … the margin, ‘isolated wetlands,’ which are themselves only marginally ‘waters,’ are the most marginal category of ‘waters of the United States’ potentially covered by the statute.” 531 U. S., at 187, n. 13 (Stevens, J., dissenting). The only other ground that the dissent offers to distinguish SWANCC is that, unlike the ponds in SWANCC, the wetlands in these cases are “adjacent to navigable bodies of water and their tributaries”—where “adjacent” may be interpreted who-knows-how broadly. It is not clear why roughly defined physical proximity should make such a difference—without actual abutment, it raises no boundary-drawing ambiguity, and it is undoubtedly a poor proxy for ecological significance. In fact, though the dissent is careful to restrict its discussion to wetlands “adjacent” to tributaries, its reasons for including those wetlands are strictly ecological—such wetlands would be included because they “serve … important water quality roles,” post, at 11, and “play important roles in the watershed,” post, at 18–19. This reasoning would swiftly overwhelm SWANCC altogether; after all, the ponds at issue in SWANCC could, no less than the wetlands in these cases, “offer ‘nesting, spawning, rearing and resting sites for aquatic or land species,’ ” and “ ‘serve as valuable storage areas for storm and flood waters,’ ” post, at 9–10. The dissent’s exclusive focus on ecological factors, combined with its total deference to the Corps’ ecological judgments, would permit the Corps to regulate the entire country as “waters of the United States.” B Absent a plausible ground in our case law for its sweeping position, the dissent relies heavily on “Congress’ deliberate acquiescence in the Corps’ regulations in 1977,” post, at 11—noting that “[w]e found [this acquiescence] significant in Riverside Bayview,” and even “acknowledged in SWANCC” that we had done so, post, at 12. SWANCC “acknowledged” that Riverside Bayview had relied on congressional acquiescence only to criticize that reliance. It reasserted in no uncertain terms our oft-expressed skepticism towards reading the tea leaves of congressional inaction: “Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care. Failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute. … The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing [§1344(a)] is also considerably attenuated. Because subsequent history is less illuminating than the contemporaneous evidence, respondents face a difficult task in overcoming the plain text and import of [§1344(a)].” 531 U. S., at 169 (citations, internal quotation marks, and footnote omitted). Congress takes no governmental action except by legislation. What the dissent refers to as “Congress’ deliberate acquiescence” should more appropriately be called Congress’s failure to express any opinion. We have no idea whether the Members’ failure to act in 1977 was attributable to their belief that the Corps’ regulations were correct, or rather to their belief that the courts would eliminate any excesses, or indeed simply to their unwillingness to confront the environmental lobby. To be sure, we have sometimes relied on congressional acquiescence when there is evidence that Congress considered and rejected the “precise issue” presented before the Court, Bob Jones Univ. v. United States, 461 U. S. 574, 600 (1983) (emphasis added). However, “[a]bsent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation.” SWANCC, supra, at 169, n. 5 (emphasis added). The dissent falls far short of producing “overwhelming evidence” that Congress considered and failed to act upon the “precise issue” before the Court today—namely, what constitutes an “adjacent” wetland covered by the Act. Citing Riverside Bayview’s account of the 1977 debates, the dissent claims nothing more than that Congress “conducted extensive debates about the Corps’ regulatory jurisdiction over wetlands [and] rejected efforts to limit that jurisdiction … .” Post, at 11. In fact, even that vague description goes too far. As recounted in Riverside Bayview, the 1977 debates concerned a proposal to “limi[t] the Corps’ authority under [§1344] to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters),” 474 U. S., at 136. In rejecting this proposal, Congress merely failed to enact a limitation of “waters” to include only navigable-in-fact waters—an interpretation we affirmatively reject today, see supra, at 12—and a definition of wetlands based on “periodi[c] inundat[ion]” that appears almost nowhere in the briefs or opinions of these cases.[Footnote 13] No plausible interpretation of this legislative inaction can construe it as an implied endorsement of every jot and tittle of the Corps’ 1977 regulations. In fact, Riverside Bayview itself relied on this legislative inaction only as “at least some evidence of the reasonableness” of the agency’s inclusion of adjacent wetlands under the Act, 474 U. S., at 137, and for the observation that “even those who would have restricted the reach of the Corps’ jurisdiction” would not have excised adjacent wetlands, ibid. Both of these conclusions are perfectly consistent with our interpretation, and neither illuminates the disputed question of what constitutes an “adjacent” wetland. C In a curious appeal to entrenched Executive error, the dissent contends that “the appropriateness of the Corps’ 30-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary.” Post, at 14; see also post, at 2, 22. Surely this is a novel principle of administrative law—a sort of 30-year adverse possession that insulates disregard of statutory text from judicial review. It deservedly has no precedent in our jurisprudence. We did not invoke such a principle in SWANCC, when we invalidated one aspect of the Corps’ implementation. The dissent contends that “[b]ecause there is ambiguity in the phrase ‘waters of the United States’ and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act, the Corps’ approach should command our deference.” Post, at 19. Two defects in a single sentence: “[W]aters of the United States” is in some respects ambiguous. The scope of that ambiguity, however, does not conceivably extend to whether storm drains and dry ditches are “waters,” and hence does not support the Corps’ interpretation. And as for advancing “the purpose of the Act”: We have often criticized that last resort of extravagant interpretation, noting that no law pursues its purpose at all costs, and that the textual limitations upon a law’s scope are no less a part of its “purpose” than its substantive authorizations. See, e.g., Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 135–136 (1995). Finally, we could not agree more with the dissent’s statement, post, at 14, that “[w]hether the benefits of particular conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges.” Neither, however, should it be answered by appointed officers of the Corps of Engineers in contradiction of congressional direction. It is the dissent’s opinion, and not ours, which appeals not to a reasonable interpretation of enacted text, but to the great environmental benefits that a patently unreasonable interpretation can achieve. We have begun our discussion by mentioning, to be sure, the high costs imposed by that interpretation—but they are in no way the basis for our decision, which rests, plainly and simply, upon the limited meaning that can be borne by the phrase “waters of the United States.” VII Justice Kennedy’s opinion concludes that our reading of the Act “is inconsistent with its text, structure, and purpose.” Post, at 19. His own opinion, however, leaves the Act’s “text” and “structure” virtually unaddressed, and rests its case upon an interpretation of the phrase “significant nexus,” ibid., which appears in one of our opinions. To begin with, Justice Kennedy’s reading of “significant nexus” bears no easily recognizable relation to either the case that used it (SWANCC) or to the earlier case that that case purported to be interpreting (Riverside Bayview). To establish a “significant nexus,” Justice Kennedy would require the Corps to “establish … on a case-by-case basis” that wetlands adjacent to nonnavigable tributaries “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” Post, at 25, 23. This standard certainly does not come from Riverside Bayview, which explicitly rejected such case-by-case determinations of ecological significance for the jurisdictional question whether a wetland is covered, holding instead that all physically connected wetlands are covered. 474 U. S., at 135, n. 9. It is true enough that one reason for accepting that physical-connection criterion was the likelihood that a physically connected wetland would have an ecological effect upon the adjacent waters. But case-by-case determination of ecological effect was not the test. Likewise, that test cannot be derived from SWANCC’s characterization of Riverside Bayview, which emphasized that the wetlands which possessed a “significant nexus” in that earlier case “actually abutted on a navigable waterway,” 531 U. S., at 167, and which specifically rejected the argument that physically unconnected ponds could be included based on their ecological connection to covered waters. In fact, Justice Kennedy acknowledges that neither Riverside Bayview nor SWANCC required, for wetlands abutting navigable-in-fact waters, the case-by-case ecological determination that he proposes for wetlands that neighbor nonnavigable tributaries. See post, at 23. Thus, Justice Kennedy misreads SWANCC’s “significant nexus” statement as mischaracterizing Riverside Bayview to adopt a case-by-case test of ecological significance; and then transfers that standard to a context that Riverside Bayview expressly declined to address (namely, wetlands nearby non-navigable tributaries); while all the time conceding that this standard does not apply in the context that Riverside Bayview did address (wetlands abutting navigable waterways). Truly, this is “turtles all the way down.”[Footnote 14] But misreading our prior decisions is not the principal problem. The principal problem is reading them in utter isolation from the text of the Act. One would think, after reading Justice Kennedy’s exegesis, that the crucial provision of the text of the CWA was a jurisdictional requirement of “significant nexus” between wetlands and navigable waters. In fact, however, that phrase appears nowhere in the Act, but is taken from SWANCC’s cryptic characterization of the holding of Riverside Bayview. Our interpretation of the phrase is both consistent with those opinions and compatible with what the Act does establish as the jurisdictional criterion: “waters of the United States.” Wetlands are “waters of the United States” if they bear the “significant nexus” of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be “waters of the United States”? Justice Kennedy’s test is that they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable,’ ” post, at 23 (emphasis added). But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the United States? Only by ignoring the text of the statute and by assuming that the phrase of SWANCC (“significant nexus”) can properly be interpreted in isolation from that text does Justice Kennedy reach the conclusion he has arrived at. Instead of limiting its meaning by reference to the text it was applying, he purports to do so by reference to what he calls the “purpose” of the statute. Its purpose is to clean up the waters of the United States, and therefore anything that might “significantly affect” the purity of those waters bears a “significant nexus” to those waters, and thus (he never says this, but the text of the statute demands that he mean it) is those waters. This is the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different statute that achieves the same purpose. To begin with, as we have discussed earlier, clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U. S. C. §1251(b). Justice Kennedy’s test takes no account of this purpose. More fundamentally, however, the test simply rewrites the statute, using for that purpose the gimmick of “significant nexus.” It would have been an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry lands) that “significantly affect the chemical, physical, and biological integrity of ” waters of the United States. It did not do that, but instead explicitly limited jurisdiction to “waters of the United States.” Justice Kennedy’s disposition would disallow some of the Corps’ excesses, and in that respect is a more moderate flouting of statutory command than Justice Stevens’.[Footnote 15] In another respect, however, it is more extreme. At least Justice Stevens can blame his implausible reading of the statute upon the Corps. His error consists of giving that agency more deference than reason permits. Justice Kennedy, however, has devised his new statute all on his own. It purports to be, not a grudging acceptance of an agency’s close-to-the-edge expansion of its own powers, but rather the most reasonable interpretation of the law. It is far from that, unless whatever affects waters is waters. VIII Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered “waters of the United States,” and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are “waters” in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are “adjacent” to these “waters” in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview. * * * We vacate the judgments of the Sixth Circuit in both No. 04–1034 and No. 04–1384, and remand both cases for further proceedings. It is so ordered. Footnote 1 In issuing permits, the Corps directs that “[a]ll factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.” §320.4(a). Footnote 2 We are indebted to the Sonoran court for a famous exchange, from the movie Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters: “ ‘Captain Renault [Claude Rains]: “What in heaven’s name brought you to Casablanca?” “ ‘Rick [Humphrey Bogart]: “My health. I came to Casablanca for the waters.” “ ‘Captain Renault: “The waters? What waters? We’re in the desert.” “ ‘Rick: “I was misinformed.’ ” 408 F. 3d, at 1117. Footnote 3 One possibility, which we ultimately find unsatisfactory, is that the “other” waters covered by 33 U. S. C. §1344(g)(1) are strictly intrastate waters that are traditionally navigable. But it would be unreasonable to interpret “the waters of the United States” to include all and only traditional navigable waters, both interstate and intrastate. This would preserve the traditional import of the qualifier “navigable” in the defined term “navigable waters,” at the cost of depriving the qualifier “of the United States” in the definition of all meaning. As traditionally understood, the latter qualifier excludes intrastate waters, whether navigable or not. See The Daniel Ball, 10 Wall. 557, 563 (1871). In SWANCC, we held that “navigable” retained something of its traditional import. 531 U. S., at 172. A fortiori, the phrase “of the United States” in the definition retains some of its traditional meaning. Footnote 4 Justice Kennedy observes, post, at 13 (opinion concurring in judgment), that the dictionary approves an alternative, somewhat poetic usage of “waters” as connoting “[a] flood or inundation; as the waters have fallen. ‘The peril of waters, wind, and rocks.’ Shak.” Webster’s Second 2882. It seems to us wholly unreasonable to interpret the statute as regulating only “floods” and “inundations” rather than traditional waterways—and strange to suppose that Congress had waxed Shakespearean in the definition section of an otherwise prosaic, indeed downright tedious, statute. The duller and more commonplace meaning is obviously intended. Footnote 5 By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months—such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent (hereinafter the dissent), post, at 15. Common sense and common usage distinguish between a wash and seasonal river. Though scientifically precise distinctions between “perennial” and “intermittent” flows are no doubt available, see, e.g., Dept. of Interior, U. S. Geological Survey, E. Hedman & W. Osterkamp, Streamflow Characteristics Related to Channel Geometry of Streams in Western United States 15 (1982) (Water-Supply Paper 2193), we have no occasion in this litigation to decide exactly when the drying-up of a stream bed is continuous and frequent enough to disqualify the channel as a “wate[r] of the United States.” It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that the dissent’s “intermittent” and “ephemeral” streams, post, at 16 (opinion of Stevens, J.)—that is, streams whose flow is “[c]oming and going at intervals … [b]roken, fitful,” Webster’s Second 1296, or “existing only, or no longer than, a day; diurnal … short-lived,” id., at 857—are not. Footnote 6 The principal definition of “stream” likewise includes reference to such permanent, geographically fixed bodies of water: “[a] current or course of water or other fluid, flowing on the earth, as a river, brook, etc.” Id., at 2493 (emphasis added). The other definitions of “stream” repeatedly emphasize the requirement of continuous flow: “[a] steady flow, as of water, air, gas, or the like”; “[a]nything issuing or moving with continued succession of parts”; “[a] continued current or course; current; drift.” Ibid. (emphases added). The definition of the verb form of “stream” contains a similar emphasis on continuity: “[t]o issue or flow in a stream; to issue freely or move in a continuous flow or course.” Ibid. (emphasis added). On these definitions, therefore, the Corps’ phrases “intermittent streams,” 33 CFR §328.3(a)(3) (2004), and “ephemeral streams,” 65 Fed. Reg. 12823 (2000), are—like Senator Bentsen’s “ ‘ flowing gullies,’ ” post, at 16, n. 11 (opinion of Stevens, J.)—useful oxymora. Properly speaking, such entities constitute extant “streams” only while they are “continuous[ly] flow[ing]”; and the usually dry channels that contain them are never “streams.” Justice Kennedy apparently concedes that “an intermittent flow can constitute a stream” only “while it is flowing,” post, at 13 (emphasis added)—which would mean that the channel is a “water” covered by the Act only during those times when water flow actually occurs. But no one contends that federal jurisdiction appears and evaporates along with the water in such regularly dry channels. Footnote 7 It is of course true, as the dissent and Justice Kennedy both observe, that ditches, channels, conduits and the like “can all hold water permanently as well as intermittently,” post, at 17 (opinion of Stevens, J.); see also post, at 14–15 (opinion of Kennedy, J.). But when they do, we usually refer to them as “rivers,” “creeks,” or “streams.” A permanently flooded ditch around a castle is technically a “ditch,” but (because it is permanently filled with water) we normally describe it as a “moat.” See Webster’s Second 1575. And a permanently flooded man-made ditch used for navigation is normally described, not as a “ditch,” but as a “canal.” See id., at 388. Likewise, an open channel through which water permanently flows is ordinarily described as a “stream,” not as a “channel,” because of the continuous presence of water. This distinction is particularly apt in the context of a statute regulating water quality, rather than (for example) the shape of stream beds. Cf. Jennison v. Kirk, 98 U. S. 453, 454–456 (1879) (referring to man-made channels as “ditches” when the alleged injury arose from physical damage to the banks of the ditch); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 709 (1994) (referring to a water-filled tube as a “tunnel” in order to describe the shape of the conveyance, not the fact that it was water-filled), both cited post, at 17, n. 12 (opinion of Stevens, J.). On its only natural reading, such a statute that treats “waters” separately from “ditch[es], channel[s], tunnel[s], and conduit[s],” thereby distinguishes between continuously flowing “waters” and channels containing only an occasional or intermittent flow. It is also true that highly artificial, manufactured, enclosed conveyance systems—such as “sewage treatment plants,” post, at 15 (opinion of Kennedy, J.), and the “mains, pipes, hydrants, machinery, buildings, and other appurtenances and incidents” of the city of Knoxville’s “system of waterworks,” Knoxville Water Co. v. Knoxville, 200 U. S. 22, 27 (1906), cited post, at 17, n. 12 (opinion of Stevens, J.)—likely do not qualify as “waters of the United States,” despite the fact that they may contain continuous flows of water. See post, at 15 (opinion of Kennedy, J.); post, at 17, n. 12 (opinion of Stevens, J.). But this does not contradict our interpretation, which asserts that relatively continuous flow is a necessary condition for qualification as a “water,” not an adequate condition. Just as ordinary usage does not treat typically dry beds as “waters,” so also it does not treat such elaborate, man-made, enclosed systems as “waters” on a par with “streams,” “rivers,” and “oceans.” Footnote 8 Justice Kennedy contends that the Corps’ preservation of the “responsibilities and rights” of the States is adequately demonstrated by the fact that “33 States and the District of Columbia have filed an amici brief in this litigation” in favor of the Corps’ interpretation, post, at 20. But it makes no difference to the statute’s stated purpose of preserving States’ “rights and responsibilities,” §1251(b), that some States wish to unburden themselves of them. Legislative and executive officers of the States may be content to leave “responsibilit[y]” with the Corps because it is attractive to shift to another entity controversial decisions disputed between politically powerful, rival interests. That, however, is not what the statute provides. Footnote 9 Justice Kennedy objects that our reliance on these two clear-statement rules is inappropriate because “the plurality’s interpretation does not fit the avoidance concerns that it raises,” post, at 19—that is, because our resolution both eliminates some jurisdiction that is clearly constitutional and traditionally federal, and retains some that is questionably constitutional and traditionally local. But a clear-statement rule can carry one only so far as the statutory text permits. Our resolution, unlike Justice Kennedy’s, keeps both the overinclusion and the underinclusion to the minimum consistent with the statutory text. Justice Kennedy’s reading—despite disregarding the text—fares no better than ours as a precise “fit” for the “avoidance concerns” that he also acknowledges. He admits, post, at 25, that “the significant nexus requirement may not align perfectly with the traditional extent of federal authority” over navigable waters—an admission that “tests the limits of understatement,” Gonzales v. Oregon, 126 S. Ct. 904, 932 (2005) (Scalia, J., dissenting)—and it aligns even worse with the preservation of traditional state land-use regulation. Footnote 10 Since the wetlands at issue in Riverside Bayview actually abutted waters of the United States, the case could not possibly have held that merely “neighboring” wetlands came within the Corps’ jurisdiction. Obiter approval of that proposition might be inferred, however, from the opinion’s quotation without comment of a statement by the Corps describing covered “adjacent” wetlands as those “ ‘that form the border of or are in reasonable proximity to other waters of the United States.’ ” 474 U. S., at 134 (quoting 42 Fed. Reg. 37128 (1977); emphasis added). The opinion immediately reiterated, however, that adjacent wetlands could be regarded as “the waters of the United States” in view of “the inherent difficulties of defining precise bounds to regulable waters,” 474 U. S., at 134—a rationale that would have no application to physically separated “neighboring” wetlands. Given that the wetlands at issue in Riverside Bayview themselves “actually abut[ted] on a navigable waterway,” id., at 135; given that our opinion recognized that unconnected wetlands could not naturally be characterized as “ ‘waters’ ” at all, id., at 132; and given the repeated reference to the difficulty of determining where waters end and wetlands begin; the most natural reading of the opinion is that a wetlands’ mere “reasonable proximity” to waters of the United States is not enough to confer Corps jurisdiction. In any event, as discussed in our immediately following text, any possible ambiguity has been eliminated by SWANCC, 531 U. S. 159 (2001). Footnote 11 The dissent argues that “the very existence of words like ‘alluvium’ and ‘silt’ in our language suggests that at least some [dredged or fill material] makes its way downstream,” post, at 22 (citation omitted). See also post, at 17 (opinion of Kennedy, J.). By contrast, amici cite multiple empirical analyses that contradict the dissent’s philological approach to sediment erosion—including one which concludes that “[t]he idea that the discharge of dredged or fill material into isolated waters, ephemeral drains or non-tidal ditches will pollute navigable waters located any appreciable distance from them lacks credibility.” R. Pierce, Technical Principles Related to Establishing the Limits of Jurisdiction for Section 404 of the Clean Water Act 34–40 (Apr. 2003), available at www.wetlandtraining.com/tpreljscwa.pdf, cited in Brief for International Council of Shopping Centers et al. as Amici Curiae 26–27; Brief for Pulte Homes, Inc., et al. as Amici Curiae 20–21; Brief for Foundation for Environmental and Economic Progress et al. as Amici Curiae 29, and n. 53 (“Fill material does not migrate”). Such scientific analysis is entirely unnecessary, however, to reach the unremarkable conclusion that the deposit of mobile pollutants into upstream ephemeral channels is naturally described as an “addition … to navigable waters,” 33 U. S. C. §1362(12), while the deposit of stationary fill material generally is not. Footnote 12 Nor does the passing reference to “wetlands adjacent thereto” in §1344(g)(1) purport to expand that statutory definition. As the dissent concedes, post, at 20, that reference merely confirms that the statutory definition can be read to include some wetlands—namely, those that directly “abut” covered waters. Riverside Bayview explicitly acknowledged that §1344(g)(1) “does not conclusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act (particularly in [§1362(7)], which contains the relevant definition of ‘navigable waters’); however, … it does at least suggest strongly that the term ‘waters’ as used in the Act does not necessarily exclude ‘wetlands.’ ” 474 U. S., at 138, n. 11 (emphases added). Footnote 13 The sole exception is in Justice Kennedy’s opinion, which argues that Riverside Bayview rejected our physical-connection requirement by accepting as a given that any wetland formed by inundation from covered waters (whether or not continuously connected to them) is covered by the Act: “The Court in Riverside Bayview … did not suggest that a flood-based origin would not support jurisdiction; indeed, it presumed the opposite. See 474 U. S., at 134 (noting that the Corps’ view was valid ‘even for wetlands that are not the result of flooding or permeation’ (emphasis added)).” Post, at 16. Of course Justice Kennedy himself fails to observe this supposed presumption, since his “significant nexus” test makes no exception for wetlands created by inundation. In any event, the language from Riverside Bayview in Justice Kennedy’s parenthetical is wrenched out of context. The sentence which Justice Kennedy quotes in part immediately followed the Court’s conclusion that “adjacent” wetlands are included because of “the inherent difficulties of defining precise bounds to regulable waters,” 474 U. S., at 134. And the full sentence reads as follows: “This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water,” ibid. (emphasis added). Clearly, the “wetlands” referred to in the sentence are only “adjacent” wetlands—namely, those with the continuous physical connection that the rest of the Riverside Bayview opinion required, see supra, at 21–23. Thus, it is evident that the quoted language was not at all a rejection of the physical-connection requirement, but rather a rejection of the alternative position (which had been adopted by the lower court in that case, see id., at 125) that the only covered wetlands are those created by inundation. As long as the wetland is “adjacent” to covered waters, said Riverside Bayview, its creation vel non by inundation is irrelevant. Footnote 14 The allusion is to a classic story told in different forms and attributed to various authors. See, e.g., Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 28–29 (1973). In our favored version, an Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies “Ah, after that it is turtles all the way down.” Footnote 15 It is unclear how much more moderate the flouting is, since Justice Kennedy’s “significant nexus” standard is perfectly opaque. When, exactly, does a wetland “significantly affect” covered waters, and when are its effects “in contrast … speculative or insubstantial”? Post, at 23. Justice Kennedy does not tell us clearly—except to suggest, post, at 25, that “ ‘ “isolated” is generally a matter of degree’ ” (quoting Leibowitz & Nadeau, Isolated Wetlands: State-of-the-Science and Future Directions, 23 Wetlands 663, 669 (2003)). As the dissent hopefully observes, post, at 24, such an unverifiable standard is not likely to constrain an agency whose disregard for the statutory language has been so long manifested. In fact, by stating that “[i]n both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above,” post, at 26, Justice Kennedy tips a wink at the agency, inviting it to try its same expansive reading again.
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546.US.333
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After the prosecutor struck a young, African-American woman, Juror 16, from the panel at respondent Collins’ state-court drug trial, Collins objected that the strike was made on account of Juror 16’s race. As race-neutral explanations for the strike, the prosecutor said that Juror 16 had rolled her eyes in response to a question from the court; that she was young and might be too tolerant of a drug crime; and that she was single and lacked ties to the community. In rejecting Collins’ challenge, the trial court declared that it did not observe the complained-of demeanor by Juror 16, but noted that she was youthful, as was a white male juror also dismissed by peremptory challenge, and stated it would give the prosecutor “the benefit of the doubt.” The prosecutor had also referred to Juror 16’s gender in explaining the strike, but the trial court disallowed any reliance on that ground. The California Court of Appeal upheld the conviction and the trial court’s ruling on the peremptory challenge, finding that the prosecutor permissibly excluded Juror 16 based on her youth. Even if youth was not a legitimate reason to exercise a peremptory challenge, said the court, Juror 16’s demeanor supported the strike; nothing in the record suggested the trial court failed to conduct a searching inquiry of the prosecutor’s reasons for striking her. The California Supreme Court denied review. The Federal District Court dismissed Collins’ habeas petition with prejudice, but the Ninth Circuit reversed and remanded, concluding that, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the State Court of Appeal’s affirmance was based on an unreasonable factual determination in light of the evidence presented at trial. Held: The Ninth Circuit’s attempt to use a set of debatable inferences to set aside the state court’s conclusion does not satisfy AEDPA’s requirements for granting habeas relief. Pp. 3–8. (a) Under Batson v. Kentucky, 476 U. S. 79, 98, a defendant’s challenge to a peremptory strike allegedly based on race requires, inter alia, that the trial court determine whether the defendant has carried his burden of proving purposeful discrimination. This involves evaluating “the persuasiveness of the [prosecutor’s proffered] justification” for the strike, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U. S. 765, 768. Because, under AEDPA, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U. S. C. §2254(d)(2), a federal court can only grant Collins’ petition if it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge. Pp. 3–4. (b) Though the Ninth Circuit recited the proper standard of review, it improperly substituted its evaluation of the record for that of the state trial court, which, under §2254(d)(2), did not make an unreasonable determination of the facts in light of the evidence presented. Noting that the trial court had not witnessed Juror 16’s purported eye rolling, the Ninth Circuit concluded that no reasonable factfinder could have accepted the prosecutor’s rendition of the alleged incident because the prosecutor had completely undermined her own credibility based on three considerations: her erroneous statement that another prospective African-American juror, Juror 19, was “young” when, in fact, she was a grandmother; the prosecutor’s improper attempt to use gender as a basis for exclusion; and the Court of Appeals’ skepticism toward the prosecutor’s explanation that she struck Juror 16 in part because of her youth and lack of ties to the community. As to the first reason, because the prosecutor’s reference to Juror 19’s youth occurred during a discussion of three prospective jurors, two of whom were, indeed, young, it is quite plausible that the prosecutor simply misspoke. It is a tenuous inference to say that an accidental reference with respect to one juror undermines the prosecutor’s credibility with respect to another. Second, the Ninth Circuit assigned the prosecutor’s reference to Juror 16’s gender more weight than it can bear, given that the prosecutor provided a number of other permissible and plausible race-neutral reasons for excluding her. Collins provides no argument why this matter demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race. Finally, even if the prosecutor’s concerns about Juror 16’s youth and lack of community ties were overly cautious, her wariness could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics. Viewing the foregoing concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor’s credibility regarding Juror 16’s alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor’s race-neutral justifications and conclude Collins had shown a Batson violation. Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination. Pp. 4–8. 365 F. 3d 667, reversed and remanded. Kennedy, J., delivered the opinion for a unanimous Court. Breyer, J., filed a concurring opinion, in which Souter, J., joined.
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. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98; Miller-El v. Dretke, 545 U. S. ___, ___ (2005) (slip op., at 18). This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768. On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U. S. 352, 364–366 (1991) (plurality opinion) (holding that evaluation of a prosecutor’s credibility “lies ‘peculiarly within a trial judge’s province’ ”). Under AEDPA, however, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d)(2). Thus, a federal habeas court can only grant Collins’ petition if it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by “clear and convincing evidence.” §2254(e)(1). See Miller-El, supra, at ___ (slip op., at 6). Although the Ninth Circuit assumed §2254(e)(1)’s presumption applied in this case, 365 F. 3d, at 677, the parties disagree about whether and when it does. We need not address that question. Even assuming, arguendo, that only §2254(d)(2) applied in this proceeding, the state-court decision was not an unreasonable determination of the facts in light of the evidence presented in the state court. Because the California Court of Appeal accepted the trial court’s credibility finding, the panel majority inquired whether the appellate court made an unreasonable factual determination. See id., at 682. The panel majority’s analysis and conclusions, however, depended entirely on its view of the trial court’s credibility holding. The panel majority found no error in the trial court’s proceedings or rulings in the first two steps of the Batson inquiry. 365 F. 3d, at 677–678. It disagreed, however, with the trial court’s conclusions on the third step, holding that it was unreasonable to accept the prosecutor’s explanation that Juror 16 was excused on account of her youth and her demeanor. Id., at 678–687. We conclude the Ninth Circuit erred, for the trial court’s credibility determination was not unreasonable. Noting that the trial court had not witnessed Juror 16’s purported eye rolling, the panel majority concluded that no reasonable factfinder could have accepted the prosecutor’s rendition of the alleged incident because the prosecutor’s conduct completely undermined her credibility. Id., at 683. Having before it only the trial court record, the Court of Appeals majority drew this conclusion based on three considerations: first, the prosecutor’s erroneous statement concerning another prospective African-American juror’s age; second, the prosecutor’s improper attempt to use gender as a basis for exclusion; and third, the majority’s skepticism toward the prosecutor’s explanation that she struck Juror 16 in part because of her youth and lack of ties to the community. Id., at 683–684. The first reason the panel majority noted for rejecting the trial court’s credibility finding pertained not to Juror 16, the subject of Collins’ claim on appeal, but to another prospective African-American juror, Juror 19. The prosecutor referred to Juror 19 as “young” even though she was a grandmother. This reference to youth took place during a discussion about three prospective jurors, Jurors 6, 16, and 19. Jurors 6 and 16 were both young. As Judge Hall observed, it is quite plausible that the prosecutor simply misspoke with respect to a juror’s numerical designation, an error defense counsel may also have committed. Id., at 688; 2 App. 9. It is a tenuous inference to say that an accidental reference with respect to one juror, Juror 19, undermines the prosecutor’s credibility with respect to Juror 16. Seizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor’s explanation was clearly not credible. Second, the panel majority concluded that the trial court should have questioned the prosecutor’s credibility because of her “attempt to use gender as a race-neutral basis for excluding Jurors 016 and 019.” 365 F. 3d, at 684. Respondent’s trial occurred in August 1996, over two years after our decision in J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994), made clear that discrimination in jury selection on the basis of gender violates the Equal Protection Clause. Although the record contains a somewhat confusing colloquy on this point, it can be read as indicating that one of the prosecutor’s aims in striking Juror 16 was achieving gender balance on the jury. Concerned about the constitutionality of such a strike, the trial court made clear that it would not accept gender as a race-neutral explanation. The panel majority assigned the gender justification more weight than it can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race. Finally, the panel majority believed to be unsupportable the prosecutor’s stated concern that Juror 16 might, as a young and single citizen with no ties to the community, be too tolerant of the crime with which respondent was charged. 365 F. 3d, at 680–682, 684. This was so, the majority concluded, because during voir dire Juror 16 replied affirmatively when asked if she believed the crime with which respondent was charged should be illegal and disclaimed any other reason she could not be impartial. Id., at 680. That the prosecutor claimed to hold such concerns despite Juror 16’s voir dire averments does not establish that she offered a pretext. It is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of a controlled substance. Accord, id., at 690 (Hall, J., dissenting). Even if the prosecutor was overly cautious in this regard, her wariness of the young and the rootless could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics. 2 App. 5, 14. Viewing the panel majority’s concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor’s credibility regarding Juror 16’s alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor’s race-neutral justifications and conclude Collins had shown a Batson violation. Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination. The panel majority did not stop at the conclusion that the trial court rendered an unreasonable factual determination in light of the evidence presented. It further concluded that the state courts had unreasonably applied clearly established federal law as determined by this Court. 365 F. 3d, at 679; 28 U. S. C. §2254(d)(1). The question whether a state court errs in determining the facts is a different question from whether it errs in applying the law. In this case there is no demonstration that either the trial court or the California Court of Appeal acted contrary to clearly established federal law in recognizing and applying Batson’s burden-framework. See 2 App. 14–15; App. to Pet. for Cert. 114–116. The only question, as we have noted, is whether the trial court’s factual determination at Batson’s third step was unreasonable. For the reasons discussed above, we conclude it was not. III The panel majority’s attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA’s requirements for granting a writ of habeas corpus. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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547.US.47
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Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties, whose members have policies opposing discrimination based on, inter alia, sexual orientation. They would like to restrict military recruiting on their campuses because they object to the Government’s policy on homosexuals in the military, but the Solomon Amendment—which provides that educational institutions denying military recruiters access equal to that provided other recruiters will lose certain federal funds—forces them to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive those funds. In 2003, FAIR sought a preliminary injunction against enforcement of an earlier version of the Solomon Amendment, arguing that forced inclusion and equal treatment of military recruiters violated its members’ First Amendment freedoms of speech and association. Denying relief on the ground that FAIR had not established a likelihood of success on the merits, the District Court concluded that recruiting is conduct, not speech, and thus Congress could regulate any expressive aspect of the military’s conduct under United States v. O’Brien, 391 U. S. 367. The District Court, however, questioned the Department of Defense (DOD) interpretation of the Solomon Amendment, under which law schools must provide recruiters access at least equal to that provided other recruiters. Congress responded to this concern by codifying the DOD’s policy. Reversing the District Court’s judgment, the Third Circuit concluded that the amended Solomon Amendment violates the unconstitutional conditions doctrine by forcing a law school to choose between surrendering First Amendment rights and losing federal funding for its university. The court did not think that O’Brien applied, but nonetheless determined that, if the activities were expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under that decision. Held: Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech and association, the Third Circuit erred in holding that the Solomon Amendment likely violates the First Amendment. Pp. 5–21. 1. The Solomon Amendment should be read the way both the Government and FAIR interpret it: In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. Contrary to the argument of amici law professors, a school excluding military recruiters could not comply with the Solomon Amendment by also excluding any other recruiter that violates its nondiscrimination policy. The Secretary of Defense must compare the military’s “access to campuses” and “to students” to “the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983. The statute does not focus on the content of a school’s recruiting policy, but on the result achieved by the policy. Applying the same policy to all recruiters does not comply with the statute if it results in a greater level of access for other recruiters than for the military. This interpretation is supported by the text of the statute and is necessary to give effect to the Solomon Amendment’s recent revision. Pp. 5–8. 2. Under the Solomon Amendment, a university must allow equal access for military recruiters in order to receive certain federal funds. Although there are limits on Congress’ ability to condition the receipt of funds, see, e.g., United States v. American Library Assn., Inc., 539 U. S. 194, 210, a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. Pp. 8–20. (a) As a general matter, the Solomon Amendment regulates conduct, not speech. Nevertheless, the Court of Appeals concluded that the statute violates law schools’ freedom of speech in a number of ways. First, the law schools must provide military recruiters with some assistance clearly involving speech, such as sending e-mails and distributing flyers, if they provide such services to other recruiters. This speech is subject to First Amendment scrutiny, but the compelled speech here is plainly incidental to the statute’s regulation of conduct. Compelling a law school that sends e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance to the flag, West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, or forcing a Jehovah’s Witness to display a particular motto on his license plate, Wooley v. Maynard, 430 U. S. 705, and it trivializes the freedom protected in Barnette and Wooley to suggest that it is. Second, that military recruiters are, to some extent, speaking while on campus does not mean that the Solomon Amendment unconstitutionally requires laws schools to accommodate the military’s message by including those recruiters in interviews and recruiting receptions. This Court has found compelled-speech violations where the complaining speaker’s own message was affected by the speech it was forced to accommodate. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566. Here, however, the schools are not speaking when they host interviews and recruiting receptions. They facilitate recruiting to assist their students in obtaining jobs. Thus, a law school’s recruiting services lack the expressive quality of, for example, the parade in Hurley. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what they may say about the military’s policies. Third, freedom of speech can be violated by expressive conduct, but the expressive nature of the conduct regulated by the Solomon Amendment does not bring that conduct within the First Amendment’s protection. Unlike flag burning, see Texas v. Johnson, 491 U. S. 397, the conduct here is not so inherently expressive that it warrants protection under O’Brien. Before adoption of the Solomon Amendment’s equal-access requirement, law schools expressed their disagreement with the military by treating military recruiters differently from other recruiters. These actions were expressive not because of the conduct but because of the speech that accompanied that conduct. Moreover, even if the Solomon Amendment were regarded as regulating expressive conduct, it would be constitutional under O’Brien. Pp. 8–18. (b) The Solomon Amendment also does not violate the law schools’ freedom of expressive association. Unlike Boy Scouts of America v. Dale, 530 U. S. 640, where the Boy Scouts’ freedom of expressive association was violated when a state law required the organization to accept a homosexual scoutmaster, the statute here does not force a law school “ ‘to accept members it does not desire,’ ” id., at 648. Law schools “associate” with military recruiters in the sense that they interact with them, but recruiters are not part of the school. They are outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. The freedom of expressive association protects more than a group’s membership decisions, reaching activities that affect a group’s ability to express its message by making group membership less attractive. But the Solomon Amendment has no similar effect on a law school’s associational rights. Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making membership less desirable. Pp. 18–20. 390 F. 3d 219, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
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When law schools began restricting the access of military recruiters to their students because of disagreement with the Government’s policy on homosexuals in the military, Congress responded by enacting the Solomon Amendment. See 10 U. S. C. A. §983 (Supp. 2005). That provision specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. The law schools responded by suing, alleging that the Solomon Amendment infringed their First Amendment freedoms of speech and association. The District Court disagreed but was reversed by a divided panel of the Court of Appeals for the Third Circuit, which ordered the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment. We granted certiorari. I Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties. App. 5. Its declared mission is “to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.” Id., at 6. FAIR members have adopted policies expressing their opposition to discrimination based on, among other factors, sexual orientation. Id., at 18. They would like to restrict military recruiting on their campuses because they object to the policy Congress has adopted with respect to homosexuals in the military. See 10 U. S. C. §654.[Footnote 1] The Solomon Amendment, however, forces institutions to choose between enforcing their nondiscrimination policy against military recruiters in this way and continuing to receive specified federal funding. In 2003, FAIR sought a preliminary injunction against enforcement of the Solomon Amendment, which at that time—it has since been amended—prevented the Department of Defense (DOD) from providing specified federal funds to any institution of higher education “that either prohibits, or in effect prevents” military recruiters “from gaining entry to campuses.” §983(b).[Footnote 2] FAIR considered the DOD’s interpretation of this provision particularly objectionable. Although the statute required only “entry to campuses,” the Government—after the terrorist attacks on September 11, 2001—adopted an informal policy of “ ‘requir[ing] universities to provide military recruiters access to students equal in quality and scope to that provided to other recruiters.’ ” 291 F. Supp. 2d 269, 283 (NJ 2003). Prior to the adoption of this policy, some law schools sought to promote their nondiscrimination policies while still complying with the Solomon Amendment by having military recruiters interview on the undergraduate campus. Id., at 282. But under the equal access policy, military recruiters had to be permitted to interview at the law schools, if other recruiters did so. FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter’s message, and ensuring the availability of federal funding for their universities. The District Court denied the preliminary injunction on the ground that FAIR had failed to establish a likelihood of success on the merits of its First Amendment claims. The District Court held that inclusion “of an unwanted periodic visitor” did not “significantly affect the law schools’ ability to express their particular message or viewpoint.” Id., at 304. The District Court based its decision in large part on the determination that recruiting is conduct and not speech, concluding that any expressive aspect of recruiting “is entirely ancillary to its dominant economic purpose.” Id., at 308. The District Court held that Congress could regulate this expressive aspect of the conduct under the test set forth in United States v. O’Brien, 391 U. S. 367 (1968). 291 F. Supp. 2d, at 311–314. In rejecting FAIR’s constitutional claims, the District Court disagreed with “the DOD’s proposed interpretation that the statute requires law schools to ‘provide military recruiters access to students that is at least equal in quality and scope to the access provided other potential employers.’ ” Id., at 321. In response to the District Court’s concerns, Congress codified the DOD’s informal policy. See H. R. Rep. No. 108–443, pt. 1, p. 6 (2004) (discussing the District Court’s decision in this case and stating that the amended statute “would address the court’s opinion and codify the equal access standard”). The Solomon Amendment now prevents an institution from receiving certain federal funding if it prohibits military recruiters “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983(b) (Supp. 2005).[Footnote 3] FAIR appealed the District Court’s judgment, arguing that the recently amended Solomon Amendment was unconstitutional for the same reasons as the earlier version. A divided panel of the Court of Appeals for the Third Circuit agreed. 390 F. 3d 219 (2004). According to the Third Circuit, the Solomon Amendment violated the unconstitutional conditions doctrine because it forced a law school to choose between surrendering First Amendment rights and losing federal funding for its university. Id., at 229–243. Unlike the District Court, the Court of Appeals did not think that the O’Brien analysis applied because the Solomon Amendment, in its view, regulated speech and not simply expressive conduct. 390 F. 3d, at 243–244. The Third Circuit nonetheless determined that if the regulated activities were properly treated as expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under O’Brien. 390 F. 3d, at 244–246. As a result, the Court of Appeals reversed and remanded for the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment. Id., at 246. A dissenting judge would have applied O’Brien and affirmed. 390 F. 3d, at 260–262. We granted certiorari. 544 U. S. 1017 (2005). II The Solomon Amendment denies federal funding to an institution of higher education that “has a policy or practice … that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983(b) (Supp. 2005). The statute provides an exception for an institution with “a longstanding policy of pacifism based on historical religious affiliation.” §983(c)(2). The Government and FAIR agree on what this statute requires: In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. Certain law professors participating as amici, however, argue that the Government and FAIR misinterpret the statute. See Brief for William Alford et al. as Amici Curiae 10–18; Brief for 56 Columbia Law School Faculty Members as Amici Curiae 6–15. According to these amici, the Solomon Amendment’s equal-access requirement is satisfied when an institution applies to military recruiters the same policy it applies to all other recruiters. On this reading, a school excluding military recruiters would comply with the Solomon Amendment so long as it also excluded any other employer that violates its nondiscrimination policy. In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. Reply Brief for United States 20, n. 4. But our review may, in our discretion, encompass questions “ ‘fairly included’ ” within the question presented, Yee v. Escondido, 503 U. S. 519, 535 (1992), and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says. Nor must we accept an interpretation of a statute simply because it is agreed to by the parties. After all, “[o]ur task is to construe what Congress has enacted.” Duncan v. Walker, 533 U. S. 167, 172 (2001). We think it appropriate in the present case to consider whether institutions can comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military recruiters. We conclude that they cannot and that the Government and FAIR correctly interpret the Solomon Amendment. The statute requires the Secretary of Defense to compare the military’s “access to campuses” and “access to students” to “the access to campuses and to students that is provided to any other employer.” (Emphasis added.) The statute does not call for an inquiry into why or how the “other employer” secured its access. Under amici’s reading, a military recruiter has the same “access” to campuses and students as, say, a law firm when the law firm is permitted on campus to interview students and the military is not. We do not think that the military recruiter has received equal “access” in this situation—regardless of whether the disparate treatment is attributable to the military’s failure to comply with the school’s nondiscrimination policy. The Solomon Amendment does not focus on the content of a school’s recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy and compares the “access … provided” military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that “provided to any other employer.” (Emphasis added.) Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment’s recent revision. Under the prior version, the statute required “entry” without specifying how military recruiters should be treated once on campus. 10 U. S. C. §983(b). The District Court thought that the DOD policy, which required equal access to students once recruiters were on campus, was unwarranted based on the text of the statute. 291 F. Supp. 2d, at 321. Congress responded directly to this decision by codifying the DOD policy. Under amici’s interpretation, this legislative change had no effect—law schools could still restrict military access, so long as they do so under a generally applicable nondiscrimination policy. Worse yet, the legislative change made it easier for schools to keep military recruiters out altogether: under the prior version, simple access could not be denied, but under the amended version, access could be denied altogether, so long as a nonmilitary recruiter would also be denied access. That is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise. We therefore read the Solomon Amendment the way both the Government and FAIR interpret it. It is insufficient for a law school to treat the military as it treats all other employers who violate its nondiscrimination policy. Under the statute, military recruiters must be given the same access as recruiters who comply with the policy. III The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1, 12–13. Congress’ power in this area “is broad and sweeping,” O’Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981). But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, “judicial deference … is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70. Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs. Congress’ choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities. Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell, 465 U. S. 555, 575–576 (1984), we rejected a private college’s claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument “warrant[ed] only brief consideration” because “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” Id., at 575. We concluded that no First Amendment violation had occurred—without reviewing the substance of the First Amendment claims—because Grove City could decline the Government’s funds. Id., at 575–576. Other decisions, however, recognize a limit on Congress’ ability to place conditions on the receipt of funds. We recently held that “ ‘the government may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit.’ ” United States v. American Library Assn., Inc., 539 U. S. 194, 210 (2003) (quoting Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674 (1996) (some internal quotation marks omitted)). Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitutional if Congress could not directly require universities to provide military recruiters equal access to their students. This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958). Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. A The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say. Nevertheless, the Third Circuit concluded that the Solomon Amendment violates law schools’ freedom of speech in a number of ways. First, in assisting military recruiters, law schools provide some services, such as sending e-mails and distributing flyers, that clearly involve speech. The Court of Appeals held that in supplying these services law schools are unconstitutionally compelled to speak the Government’s message. Second, military recruiters are, to some extent, speaking while they are on campus. The Court of Appeals held that, by forcing law schools to permit the military on campus to express its message, the Solomon Amendment unconstitutionally requires law schools to host or accommodate the military’s speech. Third, although the Court of Appeals thought that the Solomon Amendment regulated speech, it held in the alternative that, if the statute regulates conduct, this conduct is expressive and regulating it unconstitutionally infringes law schools’ right to engage in expressive conduct. We consider each issue in turn.[Footnote 4] 1 Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard, 430 U. S. 705, 717 (1977), we held unconstitutional another that required New Hampshire motorists to display the state motto—“Live Free or Die”—on their license plates. The Solomon Amendment does not require any similar expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf. See, e.g., App. 169–170; Brief for NALP (National Association for Law Placement) et al. as Amici Curiae 11. Law schools offering such services to other recruiters must also send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled statements of opinion, are subject to First Amendment scrutiny. See Brief for Respondents 25 (citing Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 797–798 (1988)). This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only “compelled” if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse. The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949). Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some circumstances violate laws directed not against speech but against conduct”). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is. 2 Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566 (1995) (state law cannot require a parade to include a group whose message the parade’s organizer does not wish to send); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 20–21 (1986) (plurality opinion); accord, id., at 25 (Marshall, J., concurring in judgment) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute violates editors’ right to determine the content of their newspapers). Relying on these precedents, the Third Circuit concluded that the Solomon Amendment unconstitutionally compels law schools to accommodate the military’s message “[b]y requiring schools to include military recruiters in the interviews and recruiting receptions the schools arrange.” 390 F. 3d, at 240. The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate. The expressive nature of a parade was central to our holding in Hurley. 515 U. S., at 568 (“Parades are … a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches”). We concluded that because “every participating unit affects the message conveyed by the [parade’s] private organizers,” a law dictating that a particular group must be included in the parade “alter[s] the expressive content of th[e] parade.” Id., at 572–573. As a result, we held that the State’s public accommodation law, as applied to a private parade, “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id., at 573. The compelled-speech violations in Tornillo and Pacific Gas also resulted from interference with a speaker’s desired message. In Tornillo, we recognized that “the compelled printing of a reply … tak[es] up space that could be devoted to other material the newspaper may have preferred to print,” 418 U. S., at 256, and therefore concluded that this right-of-reply statute infringed the newspaper editors’ freedom of speech by altering the message the paper wished to express, id., at 258. The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8–9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility’s ability to communicate its own message in its newsletter. A plurality of the Court likened this to the situation in Tornillo and held that the forced inclusion of the other newsletter interfered with the utility’s own message. 475 U. S., at 16–18. In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school. The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the military’s policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). In that case, we upheld a state law requiring a shopping center owner to allow certain expressive activities by others on its property. We explained that there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was “not … being compelled to affirm [a] belief in any governmentally prescribed position or view.” Id., at 88. The same is true here. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution concern “not a plausible fear”). Surely students have not lost that ability by the time they get to law school. 3 Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment’s protection. In O’Brien, we recognized that some forms of “ ‘symbolic speech’ ” were deserving of First Amendment protection. 391 U. S., at 376. But we rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Ibid. Instead, we have extended First Amendment protection only to conduct that is inherently expressive. In Texas v. Johnson, 491 U. S. 397, 406 (1989), for example, we applied O’Brien and held that burning the American flag was sufficiently expressive to warrant First Amendment protection. Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment’s equal-access requirement, law schools “expressed” their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not “overwhelmingly apparent.” Johnson, supra, at 406. An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else. The expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment. Neither O’Brien nor its progeny supports such a result. Although the Third Circuit also concluded that O’Brien does not apply, it held in the alternative that the Solomon Amendment does not pass muster under O’Brien because the Government failed to produce evidence establishing that the Solomon Amendment was necessary and effective. 390 F. 3d, at 245. The Court of Appeals surmised that “the military has ample resources to recruit through alternative means,” suggesting “loan repayment programs” and “television and radio advertisements.” Id., at 234–235. As a result, the Government—according to the Third Circuit—failed to establish that the statute’s burden on speech is no greater than essential to furthering its interest in military recruiting. Id., at 245. We disagree with the Court of Appeals’ reasoning and result. We have held that “an incidental burden on speech is no greater than is essential, and therefore is permissible under O’Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini, 472 U. S. 675, 689 (1985). The Solomon Amendment clearly satisfies this requirement. Military recruiting promotes the substantial Government interest in raising and supporting the Armed Forces—an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers. The Court of Appeals’ proposed alternative methods of recruiting are beside the point. The issue is not whether other means of raising an army and providing for a navy might be adequate. See id., at 689 (regulations are not “invalid simply because there is some imaginable alternative that might be less burdensome on speech”). That is a judgment for Congress, not the courts. See U. S. Const., Art. I, §8, cls. 12–13; Rostker, 453 U. S., at 64–65. It suffices that the means chosen by Congress add to the effectiveness of military recruitment. Accordingly, even if the Solomon Amendment were regarded as regulating expressive conduct, it would not violate the First Amendment under O’Brien. B The Solomon Amendment does not violate law schools’ freedom of speech, but the First Amendment’s protection extends beyond the right to speak. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.” See, e.g., Boy Scouts of America v. Dale, 530 U. S. 640, 644 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one’s voice with the voices of others. See Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). If the government were free to restrict individuals’ ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect. Ibid. FAIR argues that the Solomon Amendment violates law schools’ freedom of expressive association. According to FAIR, law schools’ ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools’ obligation to assist them. Relying heavily on our decision in Dale, the Court of Appeals agreed. 390 F. 3d, at 230–235. In Dale, we held that the Boy Scouts’ freedom of expressive association was violated by New Jersey’s public accommodations law, which required the organization to accept a homosexual as a scoutmaster. After determining that the Boy Scouts was an expressive association, that “the forced inclusion of Dale would significantly affect its expression,” and that the State’s interests did not justify this intrusion, we concluded that the Boy Scout’s First Amendment rights were violated. 530 U. S., at 655–659. The Solomon Amendment, however, does not similarly affect a law school’s associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore “associate” with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school “ ‘to accept members it does not desire.’ ” Id., at 648 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra, at 16, so too a speaker cannot “erect a shield” against laws requiring access “simply by asserting” that mere association “would impair its message.” 530 U. S., at 653. FAIR correctly notes that the freedom of expressive association protects more than just a group’s membership decisions. For example, we have held laws unconstitutional that require disclosure of membership lists for groups seeking anonymity, Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 101–102 (1982), or impose penalties or withhold benefits based on membership in a disfavored group, Healy v. James, 408 U. S. 169, 180–184 (1972). Although these laws did not directly interfere with an organization’s composition, they made group membership less attractive, raising the same First Amendment concerns about affecting the group’s ability to express its message. The Solomon Amendment has no similar effect on a law school’s associational rights. Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making group membership less desirable. The Solomon Amendment therefore does not violate a law school’s First Amendment rights. A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message. * * * In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment. To the extent that the Solomon Amendment incidentally affects expression, the law schools’ effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents. Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech or association, the Court of Appeals erred in holding that the Solomon Amendment likely violates the First Amendment. We therefore reverse the judgment of the Third Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 Under this policy, a person generally may not serve in the Armed Forces if he has engaged in homosexual acts, stated that he is a homosexual, or married a person of the same sex. Respondents do not challenge that policy in this litigation. Footnote 2 The complaint named numerous other plaintiffs as well. The District Court concluded that each plaintiff had standing to bring this suit. 291 F. Supp. 2d 269, 284–296 (NJ 2003). The Court of Appeals for the Third Circuit agreed with the District Court that FAIR had associational standing to bring this suit on behalf of its members. 390 F. 3d 219, 228, n. 7 (2004). The Court of Appeals did not determine whether the other plaintiffs have standing because the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement. Ibid. (citing Bowsher v. Synar, 478 U. S. 714, 721 (1986)). Because we also agree that FAIR has standing, we similarly limit our discussion to FAIR. Footnote 3 The federal funds covered by the Solomon Amendment are specified at 10 U. S. C. A. §983(d)(1) (Supp. 2005) and include funding from the Departments of Defense, Homeland Security, Transportation, Labor, Health and Human Services, and Education, and the Central Intelligence Agency and the National Nuclear Security Administration of the Department of Energy. Funds provided for student financial assistance are not covered. §983(d)(2). The loss of funding applies not only to the particular school denying access but universitywide. §983(b). Footnote 4 The Court of Appeals also held that the Solomon Amendment violated the First Amendment because it compelled law schools to subsidize the Government’s speech “by putting demands on the law schools’ employees and resources.” 390 F. 3d, at 240. We do not consider the law schools’ assistance to raise the issue of subsidizing Government speech as that concept has been used in our cases. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 559 (2005). The accommodations the law schools must provide to military recruiters are minimal, are not of a monetary nature, and are extended to all employers recruiting on campus, not just the Government. And in Johanns, which was decided after the Third Circuit’s decision in this case, we noted that our previous compelled-subsidy cases involved subsidizing private speech, and we held that “[c]itizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech.” Id., at 562. The military recruiters’ speech is clearly Government speech.
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547.US.370
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Petitioner company (Warren) asked the Federal Energy Regulatory Commission (FERC) to renew federal licenses for five of the hydroelectric dams it operates on a Maine river to generate power for its paper mill. Each dam impounds water, which is then run through turbines and returned to the riverbed, passing around a section of the river. Under protest, Warren applied for water quality certifications from respondent Maine Board of Environmental Protection pursuant to §401 of the Clean Water Act, which requires state approval of “any activity” “which may result in any discharge into the [Nation’s] navigable waters.” FERC licensed the dams subject to compliance with those certifications, which require Warren to maintain a minimum stream flow and to allow passage for certain fish and eels. After losing state administrative appeals, Warren filed suit in a state court, which rejected Warren’s claim that its dams do not result in a “discharge” under §401. The State Supreme Judicial Court affirmed. Held: Because a dam raises a potential for a discharge, §401 is triggered and state certification is required. Pp. 3–15. (a) The Clean Water Act does not define “discharge,” but provides that the term “when used without qualification includes a discharge of a pollutant, and a discharge of pollutants,” 33 U. S. C. §1362(16). But “discharge” is presumably broader, else superfluous, and since it is neither defined nor a term of art, it should be construed “in accordance with its ordinary or natural meaning,” FDIC v. Meyer, 510 U. S. 471, 476. When applied to water, discharge commonly means “flowing or issuing out,” Webster’s New International Dictionary 742. This Court has consistently intended that meaning in prior water cases, including the only case focused on §401, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, in which no one questioned that the discharge of water from a dam fell within §401’s ambit. The Environmental Protection Agency and FERC have also regularly read “discharge” to cover releases from hydroelectric dams. Pp. 3–6. (b) Warren’s three arguments for avoiding this common reading are unavailing. The canon noscitur a sociis—“a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U. S. 561, 575—does not apply here. Warren claims that since “discharge” is keeping company with “discharge” defined as adding one or more pollutants, see §1362(12), discharge standing alone must also require the addition of something foreign to the water. This argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage of language this way. Warren also relies on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, but that case is not on point. It addressed §402, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Thus, that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401. Finally, the Clean Water Act’s legislative history, if it means anything, goes against Warren’s reading of “discharge.” Pp. 6–12. (c) Warren’s arguments against reading “discharge” in its common sense also miss the forest for the trees. Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a), the “national goal” being to achieve “water quality [providing] for the protection and propagation of fish … and … for recreation,” §1251(a)(2). To do this, the Act deals with “pollution” generally, see §1251(b), which it defines as “the man-made or man-induced alteration of the [water’s] chemical, physical, biological, and radiological integrity,” §1362(19). Because the alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines, changes in the river’s flow, movement, and circulation fall within a State’s legitimate legislative business. State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution. Reading §401 to give “discharge” its common and ordinary meaning preserves the state authority apparently intended. Pp. 12–15. 2005 ME 27, 868 A. 2d 210, affirmed. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined, and in which Scalia, J., joined as to all but Part III–C.
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* The issue in this case is whether operating a dam to produce hydroelectricity “may result in any discharge into the navigable waters” of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed. I The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river just below the impoundment. It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. §799, after a review that looks to environmental issues as well as the rising demand for power, §797(e). Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a “discharge” into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State’s own laws. See Water Quality Improvement Act of 1970, §103, 84 Stat. 108. Today, this requirement can be found in §401 of the Clean Water Act, 86 Stat. 877, codified at 33 U. S. C. §1341: “Any applicant for a Federal license or permit to conduct any activity … which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates … .” §1341(a)(1). “Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.”[Footnote 1] §1341(d). In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401. The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification. After appealing unsuccessfully to Maine’s administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State’s Cumberland County Superior Court. That court rejected Warren’s argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. S. D. Warren Co. v. Board of Environmental Protection, 2005 ME 27, 868 A. 2d 210. We granted certiorari, 546 U. S. ___ (2005), and now affirm as well. II The dispute turns on the meaning of the word “discharge,” the key to the state certification requirement under §401.[Footnote 2] The Act has no definition of the term, but provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.”[Footnote 3] 33 U. S. C. §1362(16). It does define “discharge of a pollutant” and “discharge of pollutants,” as meaning “any addition of any pollutant to navigable waters from any point source.” §1362(12). But “discharge” presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994). When it applies to water, “discharge” commonly means a “flowing or issuing out,” Webster’s New International Dictionary 742 (2d ed. 1949); see also ibid. (“[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay”), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 364 (1989) (describing a dam’s “ ‘multiport’ structure, which will permit discharge of water from any of five levels”); Arizona v. California, 373 U. S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who “ ‘take … water out of the stream which has been discharged from the reservoir’ ”); United States v. Arizona, 295 U. S. 174, 181 (1935) (“Parker Dam will intercept waters discharged at Boulder Dam”). In fact, this understanding of the word “discharge” was accepted by all Members of the Court sitting in our only other case focused on §401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994). At issue in PUD No. 1 was the State of Washington’s authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this: “There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges—the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity.” Id., at 711. The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State’s §401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the “discharge of water” from the dam was a discharge within the ambit of §401. Ibid. And although the Court’s opinion made no mention of the dam as adding anything to the water, the majority’s use of the phrase “discharge of water” drew no criticism from the dissent, which specifically noted that “[t]he term ‘discharge’ is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests ‘a flowing or issuing out,’ or ‘something that is emitted.’ ” Id., at 725 (opinion of Thomas, J.) (quoting Webster’s Ninth New Collegiate Dictionary 360 (1991)). In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read “discharge” as having its plain meaning and thus covering releases from hydroelectric dams. See, e.g., EPA, Water Quality Standards Handbook §7.6.3, p. 7–10 (2d ed. 1994) (“EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act”); FPL Energy Maine Hydro LLC, 111 FERC ¶61,104, P. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress “used the term ‘discharge’ as nothing more than a shorthand expression for ‘discharge of a pollutant or pollutants’ ”).[Footnote 4] Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U. S. ___, ___ (2006) (slip op., at 11) (“Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved”); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). But even so, the administrative usage of “discharge” in this way confirms our understanding of the everyday sense of the term. III Warren makes three principal arguments for reading the term “discharge” differently from the ordinary way. We find none availing. A The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the “words grouped in a list should be given related meaning,” Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U. S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well”). Warren claims that the canon applies to §502(16) of the Clean Water Act, which provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” 33 U. S. C. §1362(16). Warren emphasizes that the “include[d]” terms, pollutant discharges, are themselves defined to require an “addition” of pollutants to water. §1362(12). Since “discharge” pure and simple is keeping company with “discharge” defined as adding one or more pollutants, Warren says “discharge” standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.[Footnote 5] The problem with Warren’s argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92–911, p. 125 (1972) (“[I]t is extremely important to an understanding of [§402] to know the definition of the various terms used and a careful reading of the definitions … is recommended. Of particular significance [are] the words ‘discharge of pollutants’ ”). B Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95 (2004). But that case is not on point. Miccosukee addressed §402 of the Clean Water Act, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to “continu[e] the authority of the State … to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.” S. Rep. No. 92–414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity “may” result in a discharge (“discharge” of course being without any qualifiers here), 33 U. S. C. §1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra. Section 402 has a historical parallel with §401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92–911, at 124–125. But it contrasts with §401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the “discharge of any pollutant” into the navigable waters of the United States, 33 U. S. C. §1342(a). The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. §1362(12). The question in Miccosukee was whether a pump between a canal and an impoundment produced a “discharge of a pollutant” within the meaning of §402, see 541 U. S., at 102–103, and the Court accepted the shared view of the parties that if two identified volumes of water are “simply two parts of the same water body, pumping water from one into the other cannot constitute an ‘addition’ of pollutants,” id., at 109. Miccosukee was thus concerned only with whether an “addition” had been made (phosphorous being the substance in issue) as required by the definition of the phrase “discharge of a pollutant”; it did not matter under §402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.[Footnote 6] C Warren’s third argument for avoiding the common meaning of “discharge” relies on the Act’s legislative history, but we think that if the history means anything it actually goes against Warren’s position. Warren suggests that the word “includes” in the definition of “discharge” should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with “thermal discharges.” As Warren describes it, several Members of Congress recognized that “heat is not as harmful as what most of us view as ‘pollutants,’ because it dissipates quickly in most bodies of receiving waters,” 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93–1, p. 273 (1973) (remarks of Cong. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under §402, but they also wanted to ensure that thermal discharges remained within the scope of §401 and so sought to include them expressly in the general provision covering “discharge.” See id., at 1069–1070, 1071. The proposed definition read, “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge.” Id., at 1071. Of course, Congress omitted the reference to “thermal discharge,” and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, §502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words “thermal discharge” from 33 U. S. C. §1362(16) and carelessly left in the word “includes.” Thus, Warren argues, there is no reason to assume that describing “discharge” as including certain acts was meant to extend the reach of §401 beyond acts of the kind specifically mentioned;[Footnote 7] the terminology of §401 simply reflects a failed effort to narrow the scope of §402. This is what might be called a lawyer’s argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under §402. It is simply speculation, though, to say that the word “includes” was left in the description of a “discharge” by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left “thermal discharge” as an included subclass of a “discharge” under §502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition. Warren’s theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms “discharge” and “discharge of pollutants” deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of “discharge” because it wanted to subject thermal discharges to the requirements of §401, but not §402. But this assumption about Congress’s motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U. S. 23, 29–30 (1997) (if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted)). IV Warren’s arguments against reading the word “discharge” in its common sense fail on their own terms. [Footnote 8] They also miss the forest for the trees. Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a); see also PUD No. 1, 511 U. S., at 714, the “national goal” being to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” 33 U. S. C. §1251(a)(2). To do this, the Act does not stop at controlling the “addition of pollutants,” but deals with “pollution” generally, see §1251(b), which Congress defined to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” §1362(19). The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams “can cause changes in the movement, flow, and circulation of a river … caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish.” Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with “immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe.” Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e.g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal: “The record in this case demonstrates that Warren’s dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river.” In re S. D. Warren Co., Maine Board of Environmental Protection (2003), in App. to Pet. for Cert. A–49. Changes in the river like these fall within a State’s legitimate legislative business, and the Clean Water Act provides for a system that respects the States’ concerns. See 33 U. S. C. §1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution”); §1256(a) (federal funds for state efforts to prevent pollution); see also §1370 (States may impose standards on the discharge of pollutants that are stricter than federal ones). State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now §401 was first proposed: “No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.” 116 Cong. Rec. 8984 (1970). These are the very reasons that Congress provided the States with power to enforce “any other appropriate requirement of State law,” 33 U. S. C. §1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid. Reading §401 to give “discharge” its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed. It is so ordered. * Justice Scalia joins all but Part III–C of this opinion. Footnote 1 The statutes cross-referenced go to effluent limitations and other limitations, 33 U. S. C. §§1311, 1312, standards of performance, §1316, and toxic effluent standards, §1317. As we have explained before, “state water quality standards adopted pursuant to §303 [of the Clean Water Act, 33 U. S. C. §1313,] are among the ‘other limitations’ with which a State may ensure compliance through the §401 certification process.” PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 713 (1994). Footnote 2 No one disputes that the Presumpscot River is a navigable water of the United States. Footnote 3 The term “pollutant” is defined in the Act to mean “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U. S. C. §1362(6). Footnote 4 Warren relies on a document from the EPA as a counterexample of the EPA’s position in this regard. See Memorandum from Ann R. Klee, EPA General Counsel et al., to Regional Administrators, regarding “Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers” (Aug. 5, 2005), available at http://www.epa.gov/ogc/documents/water_transfers.pdf (as visited Apr. 13, 2006, and available in Clerk of Court’s case file). The memorandum does not help Warren, however; it interprets §402 of the Clean Water Act, not §401, and construes the statutory phrase “discharge of a pollutant,” which, as explained below, implies a meaning different under the statute from the word “discharge” used alone. The memorandum, in fact, declares that “[i]t does not address any … terms under the statute other than ‘addition.’ ” Id., at 18. Footnote 5 We note that the Supreme Judicial Court of Maine accepted the assertion that “[a]n ‘addition’ is the fundamental characteristic of any discharge.” 2005 Me 27, ¶11, 868 A. 2d 210, 215. It then held that Warren’s dams add to the Presumpscot River because the water “los[es its] status as waters of the United States” when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. 868 A. 2d, at 216 (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Cf. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 69 (1913) (“[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable”). Thus, though we affirm the Maine judgment, we do so on different reasoning. Footnote 6 The fact that the parties in Miccosukee conceded that the water being pumped was polluted does not transform the Court’s analysis from one centered on the word “addition” to one centered on the word “discharge.” Before Miccosukee, one could have argued that transferring polluted water from a canal to a connected impoundment constituted an “addition.” Miccosukee is at odds with that construction of the statute, but it says nothing about whether the transfer of polluted water from the canal to the impoundment constitutes a “discharge.” Likewise, we are not persuaded by Warren’s claim that the word “into” somehow changes the meaning of the word “discharge” so as to require an addition. See Reply Brief for Petitioner 1–2 (“However one might read the lone word ‘discharge’ by itself, the complete statutory phrase ‘discharge into the navigable waters’ entails the introduction of something into the waters”). The force of this argument escapes us, since one can easily refer to water being poured or discharged out of one place into another without implying that an addition of some hitherto unencountered mixture or quality of water is made. Indeed, the preposition “into” was used without connoting an addition in the Miccosukee analogy cited by Warren. See 541 U. S., at 110 (“[I]f one takes a ladle of soup from a pot … and pours it back into the pot, one has not ‘added’ soup or anything else to the pot” (internal quotation marks and brackets omitted)). Footnote 7 Warren is hesitant to follow its own logic to completion by simply claiming that §401 covers nothing but what §502(16) mentions, the discharge of a pollutant or pollutants. Footnote 8 Warren briefly makes another argument for disregarding the plain meaning of the word “discharge,” relying on §511(c)(2) of the Clean Water Act, 33 U. S. C. §1371(c)(2). This section addresses the intersection of the Act with another statute, the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. §4321 et seq. NEPA “imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Department of Transportation v. Public Citizen, 541 U. S. 752, 756–757 (2004). Section 511(c)(2) makes the point that nothing in NEPA authorizes any federal agency “authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant” to review “any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under [§401] of this title.” 33 U. S. C. §1371(c)(2). Warren argues that reading §401 to cover discharges generally would preclude duplicative NEPA review of certifications involving pollutant discharges, but allow such review of those involving nonpollutant discharges. But Warren overlooks the fact that “discharge of a pollutant” is used in §511(c)(2) in the course of identifying the agency, not the activity to be certified. Whether a §401 certification involves an activity that discharges pollutants or one that simply discharges, FERC (as an agency that may be described, always, as one with “author[ity] to license or permit the conduct of any activity which may result in the discharge of a pollutant,” ibid.) may not review it. Thus, nothing in §511(c)(2) is disturbed by our holding that hydroelectric dams require §401 state certifications. It is still the case that, when a State has issued a certification covering a discharge that adds no pollutant, no federal agency will be deemed to have authority under NEPA to “review” any limitations or the adequacy of the §401 certification.
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547.US.843
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Pursuant to a California statute—which requires every prisoner eligible for release on state parole to “agree in writing to be subject to search or seizure by a parole officer or other peace officer … , with or without a search warrant and with or without cause”—and based solely on petitioner’s parolee status, an officer searched petitioner and found methamphetamine. The trial court denied his motions to suppress that evidence, and he was convicted of possession. Affirming, the State Court of Appeal held that suspicionless searches of parolees are lawful under California law and that the search in this case was reasonable under the Fourth Amendment because it was not arbitrary, capricious, or harassing. Held: The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Pp. 3–12. (a) The “totality of the circumstances” must be examined to determine whether a search is reasonable under the Fourth Amendment. United States v. Knights, 534 U. S. 112, 118. Reasonableness “is determined by assessing, on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id., at 118–119. Applying this approach in Knights, the Court found reasonable the warrantless search of a probationer’s apartment based on reasonable suspicion and a probation condition authorized by California law. In evaluating the degree of intrusion into Knights’ privacy, the Court found his probationary status “salient,” id., at 118, observing that probation is on a continuum of possible punishments and that probationers “do not enjoy ‘the absolute liberty’ ” of other citizens, id., at 119. It also found probation searches necessary to promote legitimate governmental interests of integrating probationers back into the community, combating recidivism, and protecting potential victims. Balancing those interests, the intrusion was reasonable. However, because the search was predicated on both the probation search condition and reasonable suspicion, the Court did not address the reasonableness of a search solely predicated upon the probation condition. Pp. 3–5. (b) Parolees, who are on the “continuum” of state-imposed punishments, have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is. “The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U. S. 471, 477. California’s system is consistent with these observations. An inmate electing to complete his sentence out of physical custody remains in the Department of Corrections’ legal custody for the remainder of his term and must comply with the terms and conditions of his parole. The extent and reach of those conditions demonstrate that parolees have severely diminished privacy expectations by virtue of their status alone. Additionally, as in Knights, the state law’s parole search condition was clearly expressed to petitioner, who signed an order submitting to the condition and thus was unambiguously aware of it. Examining the totality of the circumstances, petitioner did not have an expectation of privacy that society would recognize as legitimate. The State’s interests, by contrast, are substantial. A State has an “overwhelming interest” in supervising parolees because they “are more likely to commit future criminal offenses.” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 365. Similarly, a State’s interests in reducing recidivism, thereby promoting reintegration and positive citizenship among probationers and parolees, warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. The Amendment does not render States powerless to address these concerns effectively. California’s 60-to70-percent recidivism rate demonstrates that most parolees are ill prepared to handle the pressures of reintegration and require intense supervision. The State Legislature has concluded that, given the State’s number of parolees and its high recidivism rate, an individualized suspicion requirement would undermine the State’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. Contrary to petitioner’s argument, the fact that some States and the Federal Government require a level of individualized suspicion before searching a parolee is of little relevance in determining whether California’s system is drawn to meet the State’s needs and is reasonable, taking into account a parolee’s substantially diminished expectation of privacy. Nor is there merit to the argument that California’s law grants discretion without procedural safeguards. The concern that the system gives officers unbridled discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into society, is belied by the State’s prohibition on arbitrary, capricious, or harassing searches. And petitioner’s concern that the law frustrates reintegration efforts by permitting intrusions into the privacy interests of third persons is unavailing because that concern would arise under a suspicion-based system as well. Pp. 5–12. Affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Ginsburg, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter and Breyer, JJ., joined.
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California law provides that every prisoner eligible for release on state parole “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Cal. Penal Code Ann. §3067(a) (West 2000). We granted certiorari to decide whether a suspicionless search, conducted under the authority of this statute, violates the Constitution. We hold that it does not. I In September 2002, petitioner Donald Curtis Samson was on state parole in California, following a conviction for being a felon in possession of a firearm. On September 6, 2002, Officer Alex Rohleder of the San Bruno Police Department observed petitioner walking down a street with a woman and a child. Based on a prior contact with petitioner, Officer Rohleder was aware that petitioner was on parole and believed that he was facing an at large warrant. Accordingly, Officer Rohleder stopped petitioner and asked him whether he had an outstanding parole warrant. Petitioner responded that there was no outstanding warrant and that he “was in good standing with his parole agent.” Brief for Petitioner 4. Officer Rohleder confirmed, by radio dispatch, that petitioner was on parole and that he did not have an outstanding warrant. Nevertheless, pursuant to Cal. Penal Code Ann. §3067(a) (West 2000) and based solely on petitioner’s status as a parolee, Officer Rohleder searched petitioner. During the search, Officer Rohleder found a cigarette box in petitioner’s left breast pocket. Inside the box he found a plastic baggie containing methamphetamine. The State charged petitioner with possession of methamphetamine pursuant to Cal. Health & Safety Code Ann. §11377(a) (West 1991). The trial court denied petitioner’s motion to suppress the methamphetamine evidence, finding that Cal. Penal Code Ann. §3067(a) (West 2000) authorized the search and that the search was not “arbitrary or capricious.” App. 62–63 (Proceedings on Motion to Supress). A jury convicted petitioner of the possession charge and the trial court sentenced him to seven years’ imprisonment. The California Court of Appeal affirmed. Relying on People v. Reyes, 19 Cal. 4th 743, 968 P. 2d 445 (1998), the court held that suspicionless searches of parolees are lawful under California law; that “ ‘[s]uch a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing’ ”; and that the search in this case was not arbitrary, capricious, or harassing. No. A102394 (Ct. App. Cal., 1st App. Dist., Oct. 14, 2004), App. 12–14. We granted certiorari, 545 U. S. ___ (2005), to answer a variation of the question this Court left open in United States v. Knights, 534 U. S. 112, 120, n. 6 (2001)—whether a condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.[Footnote 1] Answering that question in the affirmative today, we affirm the judgment of the California Court of Appeal. II “[U]nder our general Fourth Amendment approach” we “examin[e] the totality of the circumstances” to determine whether a search is reasonable within the meaning of the Fourth Amendment. Id., at 118 (internal quotation marks omitted). Whether a search is reasonable “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id., at 118–119 (internal quotation marks omitted). We recently applied this approach in United States v. Knights. In that case, California law required Knights, as a probationer, to “ ‘[s]ubmit his … person, property, place of residence, vehicle, personal effects, to search anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.’ ” Id., at 114 (brackets in original). Several days after Knights had been placed on probation, police suspected that he had been involved in several incidents of arson and vandalism. Based upon that suspicion and pursuant to the search condition of his probation, a police officer conducted a warrantless search of Knights’ apartment and found arson and drug paraphernalia. Id., at 115–116. We concluded that the search of Knights’ apartment was reasonable. In evaluating the degree of intrusion into Knights’ privacy, we found Knights’ probationary status “salient,” id., at 118, observing that “[p]robation is ‘one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.’ ” Id., at 119 (quoting Griffin v. Wisconsin, 483 U. S. 868, 874 (1987)). Cf. Hudson v. Palmer, 468 U. S. 517, 530 (1984) (holding that prisoners have no reasonable expectation of privacy). We further observed that, by virtue of their status alone, probationers “ ‘do not enjoy “the absolute liberty to which every citizen is entitled,” ’ ” Knights, supra, at 119 (quoting Griffin, supra, at 874, in turn quoting Morrissey v. Brewer, 408 U. S. 471, 480 (1972)), justifying the “impos[ition] [of] reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Knights, supra, at 119. We also considered the facts that Knights’ probation order clearly set out the probation search condition, and that Knights was clearly informed of the condition. See Knights, 534 U. S., at 119. We concluded that under these circumstances, Knights’ expectation of privacy was significantly diminished. See id., at 119–120. We also concluded that probation searches, such as the search of Knights’ apartment, are necessary to the promotion of legitimate governmental interests. Noting the State’s dual interest in integrating probationers back into the community and combating recidivism, see id., at 120–121, we credited the “ ‘assumption’ ” that, by virtue of his status, a probationer “ ‘is more likely than the ordinary citizen to violate the law.’ ” Id., at 120 (quoting Griffin, supra, at 880). We further found that “probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply.” Knights, 534 U. S., at 120. We explained that the State did not have to ignore the reality of recidivism or suppress its interests in “protecting potential victims of criminal enterprise” for fear of running afoul of the Fourth Amendment. Id., at 121. Balancing these interests, we held that “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Ibid. Because the search at issue in Knights was predicated on both the probation search condition and reasonable suspicion, we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation. Id., at 120, n. 6. Our attention is directed to that question today, albeit in the context of a parolee search. III As we noted in Knights, parolees are on the “continuum” of state-imposed punishments. Id., at 119 (internal quotation marks omitted). On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. As this Court has pointed out, “parole is an established variation on imprisonment of convicted criminals… . The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.” Morrissey, supra, at 477. “In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 365 (1998). See also United States v. Reyes, 283 F. 3d 446, 461 (CA2 2002) (“[F]ederal supervised release, … in contrast to probation, is meted out in addition to, not in lieu of, incarceration” (citation and internal quotation marks omitted)); United States v. Cardona, 903 F. 2d 60, 63 (CA1 1990) (“[O]n the Court’s continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty than do probationers” (internal quotation marks and citation omitted)).[Footnote 2] California’s system of parole is consistent with these observations: A California inmate may serve his parole period either in physical custody, or elect to complete his sentence out of physical custody and subject to certain conditions. Cal. Penal Code Ann. §3060.5 (West 2000). Under the latter option, an inmate-turned-parolee remains in the legal custody of the California Department of Corrections through the remainder of his term, §3056, and must comply with all of the terms and conditions of parole, including mandatory drug tests, restrictions on association with felons or gang members, and mandatory meetings with parole officers, Cal. Code Regs., tit. 15, §2512 (2005); Cal. Penal Code Ann. §3067 (West 2000). See also Morrissey, supra, at 478 (discussing other permissible terms and conditions of parole). General conditions of parole also require a parolee to report to his assigned parole officer immediately upon release, inform the parole officer within 72 hours of any change in employment status, request permission to travel a distance of more than 50 miles from the parolee’s home, and refrain from criminal conduct and possession of firearms, specified weapons, or knives unrelated to employment. Cal. Code Regs., tit. 15, §2512. Parolees may also be subject to special conditions, including psychiatric treatment programs, mandatory abstinence from alcohol, residence approval, and “[a]ny other condition deemed necessary by the Board [of Parole Hearings] or the Department [of Corrections and Rehabilitation] due to unusual circumstances.” §2513. The extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone. Additionally, as we found “salient” in Knights with respect to the probation search condition, the parole search condition under California law—requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer “at any time,” Cal. Penal Code Ann. §3067(a) (West 2000)—was “clearly expressed” to petitioner. Knights, 534 U. S., at 119. He signed an order submitting to the condition and thus was “unambiguously” aware of it. Ibid. In Knights, we found that acceptance of a clear and unambiguous search condition “significantly diminished Knights’ reasonable expectation of privacy.” Id., at 120. Examining the totality of the circumstances pertaining to petitioner’s status as a parolee, “an established variation on imprisonment,” Morrissey, 408 U. S., at 477, including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate.[Footnote 3] The State’s interests, by contrast, are substantial. This Court has repeatedly acknowledged that a State has an “overwhelming interest” in supervising parolees because “parolees… are more likely to commit future criminal offenses.” Pennsylvania Bd. of Probation and Parole, 524 U. S., at 365 (explaining that the interest in combating recidivism “is the very premise behind the system of close parole supervision”). Similarly, this Court has repeatedly acknowledged that a State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. See Griffin, 483 U. S., at 879; Knights, supra, at 121. The empirical evidence presented in this case clearly demonstrates the significance of these interests to the State of California. As of November 30, 2005, California had over 130,000 released parolees. California’s parolee population has a 68-to-70 percent recidivism rate. See California Attorney General, Crime in California 37 (Apr. 2001) (explaining that 68 percent of adult parolees are returned to prison, 55 percent for a parole violation, 13 percent for the commission of a new felony offense); J. Petersilia, Challenges of Prisoner Reentry and Parole in California, 12 California Policy Research Center Brief, p. 2 (June 2000), available at http://www.ucop.edu/cprc/parole.pdf (as visited June 15, 2006, and available in Clerk of Court’s case file) (“70% of the state’s paroled felons reoffend within 18 months—the highest recidivism rate in the nation”). This Court has acknowledged the grave safety concerns that attend recidivism. See Ewing v. California, 538 U. S. 11, 26 (2003) (plurality opinion) (“Recidivism is a serious public safety concern in California and throughout the Nation”). As we made clear in Knights, the Fourth Amendment does not render the States powerless to address these concerns effectively. See 534 U. S., at 121. Contrary to petitioner’s contention, California’s ability to conduct suspicionless searches of parolees serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society. In California, an eligible inmate serving a determinate sentence may elect parole when the actual days he has served plus statutory time credits equal the term imposed by the trial court, Cal. Penal Code Ann. §§2931, 2933, 3000(b)(1) (West 2000), irrespective of whether the inmate is capable of integrating himself back into productive society. As the recidivism rate demonstrates, most parolees are ill prepared to handle the pressures of reintegration. Thus, most parolees require intense supervision. The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality. See Knights, supra, at 120; Griffin, 483 U. S., at 879. This Court concluded that the incentive-to-conceal concern justified an “intensive” system for supervising probationers in Griffin, id., at 875. That concern applies with even greater force to a system of supervising parolees. See United States v. Reyes, 283 F. 3d, at 461 (observing that the Griffin rationale “appl[ies] a fortiori” to “federal supervised release, which, in contrast to probation, is ‘meted out in addition to, not in lieu of, incareration’ ”); United States v. Crawford, 372 F. 3d 1048, 1077 (CA9 2004) (en banc) (Kleinfeld, J., concurring) (explaining that parolees, in contrast to probationers, “have been sentenced to prison for felonies and released before the end of their prison terms” and are “deemed to have acted more harmfully than anyone except those felons not released on parole”); Hudson, 468 U. S., at 526 (persons sentenced to terms of imprisonment have been “deemed to have acted more harmfully than anyone except those felons not released on parole”); id., at 529 (observing that it would be “naive” to institute a system of “ ‘planned random searches’ ” as that would allow prisoners to “anticipate” searches, thus defeating the purpose of random searches). Petitioner observes that the majority of States and the Federal Government have been able to further similar interests in reducing recidivism and promoting re-integration, despite having systems that permit parolee searches based upon some level of suspicion. Thus, petitioner contends, California’s system is constitutionally defective by comparison. Petitioner’s reliance on the practices of jurisdictions other than California, however, is misplaced. That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California’s supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee’s substantially diminished expectation of privacy.[Footnote 4] Nor is there merit to the argument that California’s parole search law permits “a blanket grant of discretion untethered by any procedural safeguards,” post, at 1 (Stevens, J., dissenting). The concern that California’s suspicionless search system gives officers unbridled discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society, is belied by California’s prohibition on “arbitrary, capricious or harassing” searches. See Reyes, 19 Cal. 4th, at 752, 753–754, 968 P. 2d, at 450, 451; People v. Bravo, 43 Cal. 3d 600, 610, 738 P. 2d 336, 342 (1987) (probation); see also Cal. Penal Code Ann. §3067(d) (West 2000) (“It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment”).[Footnote 5] The dissent’s claim that parolees under California law are subject to capricious searches conducted at the unchecked “whim” of law enforcement officers, post, at 3, 4, ignores this prohibition. Likewise, petitioner’s concern that California’s suspicionless search law frustrates reintegration efforts by permitting intrusions into the privacy interests of third parties is also unavailing because that concern would arise under a suspicion-based regime as well. IV Thus, we conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Accordingly, we affirm the judgment of the California Court of Appeal. It is so ordered. Footnote 1 Knights, 534 U. S., at 120, n. 6 (“We do not decide whether the probation condition so diminished, or completely eliminated, Knights’ reasonable expectation of privacy … that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment”). Footnote 2 Contrary to the dissent’s contention, nothing in our recognition that parolees are more akin to prisoners than probationers is inconsistent with our precedents. Nor, as the dissent suggests, do we equate parolees with prisoners for the purpose of concluding that parolees, like prisoners, have no Fourth Amendment rights. See post, at 5 (opinion of Stevens, J.). That view misperceives our holding. If that were the basis of our holding, then this case would have been resolved solely under Hudson v. Palmer, 468 U. S. 517 (1984), and there would have been no cause to resort to Fourth Amendment analysis. See ibid. (holding traditional Fourth Amendment analysis of the totality of the circumstances inapplicable to the question whether a prisoner had a reasonable expectation of privacy in his prison cell). Nor is our rationale inconsistent with Morrissey v. Brewer, 408 U. S. 471, 482 (1972). In that case, the Court recognized that restrictions on a parolee’s liberty are not unqualified. That statement, even if accepted as a truism, sheds no light on the extent to which a parolee’s constitutional rights are indeed limited—and no one argues that a parolee’s constitutional rights are not limited. Morrissey itself does not cast doubt on today’s holding given that the liberty at issue in that case—the Fourteenth Amendment Due Process right to a hearing before revocation of parole—invokes wholly different analysis than the search at issue here. Footnote 3 Because we find that the search at issue here is reasonable under our general Fourth Amendment approach, we need not reach the issue whether “acceptance of the search condition constituted consent in the Schneckloth [v. Bustamonte, 412 U. S. 218 (1973),] sense of a complete waiver of his Fourth Amendment rights.” United States v. Knights, 534 U. S. 112, 118 (2001). The California Supreme Court has not yet construed Cal. Penal Code Ann. §3067 (West 2000), the statute which governs parole for crimes committed after 1996, and which imposes the consent requirement. The California Court of Appeal has, and it has concluded that, under §3067(b), “inmates who are otherwise eligible for parole yet refuse to agree to the mandatory search condition will remain imprisoned … until either the inmate (1) agrees to the search condition and is otherwise eligible for parole or (2) has lost all worktime credits and is eligible for release after having served the balance of his/her sentence.” People v. Middleton, 131 Cal. App. 4th 732, 739–740, 31 Cal. Rptr. 3d 813, 818 (2005). Nonetheless, we decline to rest our holding today on the consent rationale. The California Supreme Court, we note, has not yet had a chance to address the question squarely, and it is far from clear that the State properly raised its consent theory in the courts below. Nor do we address whether California’s parole search condition is justified as a special need under Griffin v. Wisconsin, 483 U. S. 868 (1987), because our holding under general Fourth Amendment principles renders such an examination unnecessary. Footnote 4 The dissent argues that, “once one acknowledges that parolees do have legitimate expectations of privacy beyond those of prisoners, our Fourth Amendment jurisprudence does not permit the conclusion, reached by the Court here for the first time, that a search supported by neither individualized suspicion nor ‘special needs’ is nonetheless ‘reasonable.’ ” Post, at 2. That simply is not the case. The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion. Thus, while this Court’s jurisprudence has often recognized that “to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure,” United States v. Martinez-Fuerte, 428 U. S. 543, 560 (1976), we have also recognized that the “Fourth Amendment imposes no irreducible requirement of such suspicion,” id., at 561. Therefore, although this Court has only sanctioned suspicionless searches in limited circumstances, namely programmatic and special needs searches, we have never held that these are the only limited circumstances in which searches absent individualized suspicion could be “reasonable” under the Fourth Amendment. In light of California’s earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society, and because the object of the Fourth Amendment is reasonableness, our decision today is far from remarkable. Nor, given our prior precedents and caveats, is it “unprecedented.” Post, at 1. Footnote 5 Under California precedent, we note, an officer would not act reasonably in conducting a suspicionless search absent knowledge that the person stopped for the search is a parolee. See People v. Sanders, 31 Cal. 4th 318, 331–332, 73 P. 3d 496, 505–506 (2003); Brief for United States as Amicus Curiae 20.
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546.US.49
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To ensure disabled children a “free appropriate public education,” 20 U. S. C. A. §1400(d)(1)(A), the Individuals with Disabilities Education Act (IDEA or Act) requires school districts to create an “individualized education program” (IEP) for each disabled child, §1414(d), and authorizes parents challenging their child’s IEP to request an “impartial due process hearing,” §1415(f), but does not specify which party bears the burden of persuasion at that hearing. After an IDEA hearing initiated by petitioners, the Administrative Law Judge held that they bore the burden of persuasion and ruled in favor of respondents. The District Court reversed, concluding that the burden of persuasion is on the school district. The Fourth Circuit reversed the District Court, concluding that petitioners had offered no persuasive reason to depart from the normal rule of allocating the burden to the party seeking relief. Held: The burden of persuasion in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district. Pp. 6–12. (a) Because IDEA is silent on the allocation of the burden of persuasion, this Court begins with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding—as petitioners urge the Court to do here—are extremely rare. Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief. Pp. 6–8. (b) Petitioners’ arguments for departing from the ordinary default rule are rejected. Petitioners’ assertion that putting the burden of persuasion on school districts will help ensure that children receive a free appropriate public education is unavailing. Assigning the burden to schools might encourage them to put more resources into preparing IEPs and presenting their evidence, but IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services. There is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended the Act to reduce its administrative and litigation-related costs. The Act also does not support petitioners’ conclusion, in effect, that every IEP should be assumed to be invalid until the school district demonstrates that it is not. Petitioners’ most plausible argument—that ordinary fairness requires that a litigant not have the burden of establishing facts peculiarly within the knowledge of his adversary, United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256, n. 5—fails because IDEA gives parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government. Pp. 8–11. 377 F. 3d 449, affirmed. O’Connor, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a concurring opinion. Ginsburg, J., and Breyer, J., filed dissenting opinions. Roberts, C. J., took no part in the consideration or decision of the case.
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The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended, 20 U. S. C. A. §1400 et seq. (main ed. and Supp. 2005), is a Spending Clause statute that seeks to ensure that “all children with disabilities have available to them a free appropriate public education,” §1400(d)(1)(A). Under IDEA, school districts must create an “individualized education program” (IEP) for each disabled child. §1414(d). If parents believe their child’s IEP is inappropriate, they may request an “impartial due process hearing.” §1415(f). The Act is silent, however, as to which party bears the burden of persuasion at such a hearing. We hold that the burden lies, as it typically does, on the party seeking relief. I A Congress first passed IDEA as part of the Education of the Handicapped Act in 1970, 84 Stat. 175, and amended it substantially in the Education for All Handicapped Children Act of 1975, 89 Stat. 773. At the time the majority of disabled children in America were “either totally excluded from schools or sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out,’ ” H. R. Rep. No. 94–332, p. 2 (1975). IDEA was intended to reverse this history of neglect. As of 2003, the Act governed the provision of special education services to nearly 7 million children across the country. See Dept. of Education, Office of Special Education Programs, Data Analysis System, http://www.ideadata.org/tables27th/ar_ aa9.htm (as visited Nov. 9, 2005, and available in Clerk of Court’s case file). IDEA is “frequently described as a model of ‘cooperative federalism.’ ” Little Rock School Dist. v. Mauney, 183 F. 3d 816, 830 (CA8 1999). It “leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, [but] imposes significant requirements to be followed in the discharge of that responsibility.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 183 (1982). For example, the Act mandates cooperation and reporting between state and federal educational authorities. Participating States must certify to the Secretary of Education that they have “policies and procedures” that will effectively meet the Act’s conditions. 20 U. S. C. §1412(a). (Unless otherwise noted, all citations to the Act are to the pre-2004 version of the statute because this is the version that was in effect during the proceedings below. We note, however, that nothing in the recent 2004 amendments, 118 Stat. 2674, appears to materially affect the rule announced here.) State educational agencies, in turn, must ensure that local schools and teachers are meeting the State’s educational standards. 20 U. S. C. §§1412(a)(11), 1412(a)(15)(A). Local educational agencies (school boards or other administrative bodies) can receive IDEA funds only if they certify to a state educational agency that they are acting in accordance with the State’s policies and procedures. §1413(a)(1). The core of the statute, however, is the cooperative process that it establishes between parents and schools. Rowley, supra, at 205–206 (“Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, . . . as it did upon the measurement of the resulting IEP against a substantive standard”). The central vehicle for this collaboration is the IEP process. State educational authorities must identify and evaluate disabled children, §§1414(a)–(c), develop an IEP for each one, §1414(d)(2), and review every IEP at least once a year, §1414(d)(4). Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide. §1414(d)(1)(A). Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. §1414(c)(3). Parents are included as members of “IEP teams.” §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an “independent educational evaluation of the[ir] child.” §1415(b)(1). They must be given written prior notice of any changes in an IEP, §1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, §1415(d)(1). If parents believe that an IEP is not appropriate, they may seek an administrative “impartial due process hearing.” §1415(f). School districts may also seek such hearings, as Congress clarified in the 2004 amendments. See S. Rep. No. 108–185, p. 37 (2003). They may do so, for example, if they wish to change an existing IEP but the parents do not consent, or if parents refuse to allow their child to be evaluated. As a practical matter, it appears that most hearing requests come from parents rather than schools. Brief for Petitioners 7. Although state authorities have limited discretion to determine who conducts the hearings, §1415(f)(1)), and responsibility generally for establishing fair hearing procedures, §1415(a), Congress has chosen to legislate the central components of due process hearings. It has imposed minimal pleading standards, requiring parties to file complaints setting forth “a description of the nature of the problem,” §1415(b)(7)(B)(ii), and “a proposed resolution of the problem to the extent known and available . . . at the time,” §1415(b)(7)(B)(iii). At the hearing, all parties may be accompanied by counsel, and may “present evidence and confront, cross-examine, and compel the attendance of witnesses.” §§1415(h)(1)–(2). After the hearing, any aggrieved party may bring a civil action in state or federal court. §1415(i)(2). Prevailing parents may also recover attorney’s fees. §1415(i)(3)(B). Congress has never explicitly stated, however, which party should bear the burden of proof at IDEA hearings. B This case concerns the educational services that were due, under IDEA, to petitioner Brian Schaffer. Brian suffers from learning disabilities and speech-language impairments. From prekindergarten through seventh grade he attended a private school and struggled academically. In 1997, school officials informed Brian’s mother that he needed a school that could better accommodate his needs. Brian’s parents contacted respondent Montgomery County Public Schools System (MCPS) seeking a placement for him for the following school year. MCPS evaluated Brian and convened an IEP team. The committee generated an initial IEP offering Brian a place in either of two MCPS middle schools. Brian’s parents were not satisfied with the arrangement, believing that Brian needed smaller classes and more intensive services. The Schaffers thus enrolled Brian in another private school, and initiated a due process hearing challenging the IEP and seeking compensation for the cost of Brian’s subsequent private education. In Maryland, IEP hearings are conducted by administrative law judges (ALJs). See Md. Educ. Code Ann. §8–413(c) (Lexis 2004). After a 3-day hearing, the ALJ deemed the evidence close, held that the parents bore the burden of persuasion, and ruled in favor of the school district. The parents brought a civil action challenging the result. The United States District Court for the District of Maryland reversed and remanded, after concluding that the burden of persuasion is on the school district. Brian S. v. Vance, 86 F. Supp. 2d 538 (2000). Around the same time, MCPS offered Brian a placement in a high school with a special learning center. Brian’s parents accepted, and Brian was educated in that program until he graduated from high school. The suit remained alive, however, because the parents sought compensation for the private school tuition and related expenses. Respondents appealed to the United States Court of Appeals for the Fourth Circuit. While the appeal was pending, the ALJ reconsidered the case, deemed the evidence truly in “equipoise,” and ruled in favor of the parents. The Fourth Circuit vacated and remanded the appeal so that it could consider the burden of proof issue along with the merits on a later appeal. The District Court reaffirmed its ruling that the school district has the burden of proof. 240 F. Supp. 2d 396 (Md. 2002). On appeal, a divided panel of the Fourth Circuit reversed. Judge Michael, writing for the majority, concluded that petitioners offered no persuasive reason to “depart from the normal rule of allocating the burden to the party seeking relief.” 377 F. 3d 449, 453 (2004). We granted certiorari, 543 U. S. 1145 (2005), to resolve the following question: At an administrative hearing assessing the appropriateness of an IEP, which party bears the burden of persuasion? II A The term “burden of proof” is one of the “slipperiest member[s] of the family of legal terms.” 2 J. Strong, McCormick on Evidence §342, p. 433 (5th ed. 1999) (hereinafter McCormick). Part of the confusion surrounding the term arises from the fact that historically, the concept encompassed two distinct burdens: the “burden of persuasion,” i.e., which party loses if the evidence is closely balanced, and the “burden of production,” i.e., which party bears the obligation to come forward with the evidence at different points in the proceeding. Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 272 (1994). We note at the outset that this case concerns only the burden of persuasion, as the parties agree, Brief for Respondents 14; Reply Brief for Petitioners 15, and when we speak of burden of proof in this opinion, it is this to which we refer. When we are determining the burden of proof under a statutory cause of action, the touchstone of our inquiry is, of course, the statute. The plain text of IDEA is silent on the allocation of the burden of persuasion. We therefore begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims. McCormick §337, at 412 (“The burdens of pleading and proof with regard to most facts have and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure or proof or persuasion”); C. Mueller & L. Kirkpatrick, Evidence §3.1, p. 104 (3d ed. 2003) (“Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims”). Thus, we have usually assumed without comment that plaintiffs bear the burden of persuasion regarding the essential aspects of their claims. For example, Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2 et seq., does not directly state that plaintiffs bear the “ultimate” burden of persuasion, but we have so concluded. St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 511 (1993); id., at 531 (Souter, J., dissenting). In numerous other areas, we have presumed or held that the default rule applies. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) (standing); Cleveland v. Policy Management Systems Corp., 526 U. S. 795, 806 (1999) (Americans with Disabilities Act); Hunt v. Cromartie, 526 U. S. 541, 553 (1999) (equal protection); Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc., 532 U. S. 588, 593 (2001) (securities fraud); Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975) (preliminary injunctions); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (First Amendment). Congress also expressed its approval of the general rule when it chose to apply it to administrative proceedings under the Administrative Procedure Act, 5 U. S. C. §556(d); see also Greenwich Collieries, supra, at 271. The ordinary default rule, of course, admits of exceptions. See McCormick §337, at 412–415. For example, the burden of persuasion as to certain elements of a plantiff’s claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. See, e.g., FTC v. Morton Salt Co., 334 U. S. 37, 44–45 (1948). Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. See Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 494 (2004). But while the normal default rule does not solve all cases, it certainly solves most of them. Decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding—as petitioners urge us to do here—are extremely rare. Absent some reason to believe that Congress intended otherwise, therefore, we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief. B Petitioners contend first that a close reading of IDEA’s text compels a conclusion in their favor. They urge that we should interpret the statutory words “due process” in light of their constitutional meaning, and apply the balancing test established by Mathews v. Eldridge, 424 U. S. 319 (1976). Even assuming that the Act incorporates constitutional due process doctrine, Eldridge is no help to petitioners, because “[o]utside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment.” Lavine v. Milne, 424 U. S. 577, 585 (1976). Petitioners next contend that we should take instruction from the lower court opinions of Mills v. Board of Education, 348 F. Supp. 866 (D. C. 1972), and Pennsylvania Association for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971) (hereinafter PARC). IDEA’s drafters were admittedly guided “to a significant extent” by these two landmark cases. Rowley, 458 U. S., at 194. As the court below noted, however, the fact that Congress “took a number of the procedural safeguards from PARC and Mills and wrote them directly into the Act” does not allow us to “conclude . . . that Congress intended to adopt the ideas that it failed to write into the text of the statute.” 377 F. 3d, at 455. Petitioners also urge that putting the burden of persuasion on school districts will further IDEA’s purposes because it will help ensure that children receive a free appropriate public education. In truth, however, very few cases will be in evidentiary equipoise. Assigning the burden of persuasion to school districts might encourage schools to put more resources into preparing IEPs and presenting their evidence. But IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services. Moreover, there is reason to believe that a great deal is already spent on the administration of the Act. Litigating a due process complaint is an expensive affair, costing schools approximately $8,000-to-$12,000 per hearing. See Department of Education, J. Chambers, J. Harr, & A. Dhanani, What Are We Spending on Procedural Safeguards in Special Education 1999–2000, p. 8 (May 2003) (prepared under contract by American Institute for Research, Special Education Expenditure Project). Congress has also repeatedly amended the Act in order to reduce its administrative and litigation-related costs. For example, in 1997 Congress mandated that States offer mediation for IDEA disputes. Individuals with Disabilities Education Act Amendments of 1997, Pub. L. 105–17, §615(e), 111 Stat. 90, 20 U. S. C. §1415(e). In 2004, Congress added a mandatory “resolution session” prior to any due process hearing. Individuals with Dis- abilities Education Improvement Act of 2004, Pub. L. 108–446, §615(7)(f)(1)(B), 118 Stat. 2720, 20 U. S. C. A. §1415(f)(1)(B) (Supp. 2005). It also made new findings that “[p]arents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways,” and that “[t]eachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.” §§1400(c)(8)–(9). Petitioners in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not. The Act does not support this conclusion. IDEA relies heavily upon the expertise of school districts to meet its goals. It also includes a so-called “stay-put” provision, which requires a child to remain in his or her “then-current educational placement” during the pendency of an IDEA hearing. §1415(j). Congress could have required that a child be given the educational placement that a parent requested during a dispute, but it did no such thing. Congress appears to have presumed instead that, if the Act’s procedural requirements are respected, parents will prevail when they have legitimate grievances. See Rowley, supra, at 206 (noting the “legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP”). Petitioners’ most plausible argument is that “[t]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.” United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256, n. 5 (1957); see also Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 626 (1993). But this “rule is far from being universal, and has many qualifications upon its application.” Greenleaf’s Lessee v. Birth, 6 Pet. 302, 312 (1832); see also McCormick §337, at 413 (“Very often one must plead and prove matters as to which his adversary has superior access to the proof”). School districts have a “natural advantage” in information and expertise, but Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them. See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 368 (1985). As noted above, parents have the right to review all records that the school possesses in relation to their child. §1415(b)(1). They also have the right to an “independent educational evaluation of the[ir] child.” Ibid. The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 CFR §300.502(b)(1) (2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. Additionally, in 2004, Congress added provisions requiring school districts to answer the subject matter of a complaint in writing, and to provide parents with the reasoning behind the disputed action, details about the other options considered and rejected by the IEP team, and a description of all evaluations, reports, and other factors that the school used in coming to its decision. Pub. L. 108–446, §615(c)(2)(B)(i)(I), 118 Stat. 2718, 20 U. S. C. A. §1415(c)(2)(B)(i)(I) (Supp. 2005). Prior to a hearing, the parties must disclose evaluations and recommendations that they intend to rely upon. 20 U. S. C. §1415(f)(2). IDEA hearings are deliberately informal and intended to give ALJs the flexibility that they need to ensure that each side can fairly present its evidence. IDEA, in fact, requires state authorities to organize hearings in a way that guarantees parents and children the procedural protections of the Act. See §1415(a). Finally, and perhaps most importantly, parents may recover attorney’s fees if they prevail. §1415(i)(3)(B). These protections ensure that the school bears no unique informational advantage. III Finally, respondents and several States urge us to decide that States may, if they wish, override the default rule and put the burden always on the school district. Several States have laws or regulations purporting to do so, at least under some circumstances. See, e.g., Minn. Stat. §125A.091, subd. 16 (2004); Ala. Admin. Code Rule 290–8–9–.08(8)(c)(6) (Supp. 2004); Alaska Admin. Code tit. 4, §52.550(e)(9) (2003); Del. Code Ann., Tit. 14, §3140 (1999). Because no such law or regulation exists in Maryland, we need not decide this issue today. Justice Breyer contends that the allocation of the burden ought to be left entirely up to the States. But neither party made this argument before this Court or the courts below. We therefore decline to address it. We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore, affirmed. It is so ordered. The Chief Justice took no part in the consideration or decision of this case.
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547.US.9
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Respondents, a national nonprofit organization that supports the legal availability of abortions and two health care clinics that perform abortions, filed a class action alleging that petitioners, individuals and organizations that oppose legal abortion, engaged in a nationwide conspiracy to shut down abortion clinics through violence and other unlawful acts. Arguing that petitioners’ activities amounted in context to extortionate acts that created a pattern of racketeering activity, respondents based their claims on, inter alia, the Hobbs Act, which makes it a federal crime to “obstruc[t], dela[y], or affec[t] commerce … by … robbery or extortion … or commit[ting] or threaten[ing] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section,” 18 U. S. C. §1951(a), and on the Racketeer Influenced and Corrupt Organizations Act (RICO), which defines a proscribed “pattern of racketeering activity,” §1962(a), in terms of certain predicate acts that include extortion, see §1961(1). After trial, the jury concluded that petitioners violated RICO’s civil provisions, the Hobbs Act, and other extortion-related laws. In Scheidler v. National Organization for Women, Inc., 537 U. S. 393 (NOW II), this Court reversed the Seventh Circuit’s affirmance of the jury’s award of damages and the District Court’s issuance of a permanent nationwide injunction. The Court noted that the Hobbs Act defines “extortion” as necessarily including the improper “ ‘obtaining of property from another,’ ” id., at 400 (quoting §1951(b)(2)); observed that the claimed “property” here consisted of a woman’s right to seek clinic services and the rights of clinic staff to perform their jobs and of clinics to provide care free from wrongful threats, violence, coercion, and fear, id., at 400–401; decided that characterizing petitioners’ actions as an “obtaining of property from” respondents went well beyond permissible boundaries, id., at 402; and held, therefore, that petitioners did not commit extortion as defined by the Hobbs Act, id., at 397. The Court concluded that, because all of the predicate acts supporting the jury’s finding of a RICO violation had to be reversed, the judgment that petitioners violated RICO must also be reversed, id., at 411. On remand, the Court of Appeals decided that, because this Court had not considered respondents’ alternative theory that the jury’s RICO verdict rested not only on extortion-related conduct, but also on four instances (or threats) of physical violence unrelated to extortion, the cases must be remanded to the District Court to determine whether these four acts alone might constitute Hobbs Act violations (sufficient, as predicate acts under RICO, to support the injunction). Held: Physical violence unrelated to robbery or extortion falls outside the Hobbs Act’s scope. Congress did not intend to create a freestanding physical violence offense. It did intend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the Act refers to as robbery or extortion (and related attempts or conspiracies). Pp. 5–11. (a) The more restrictive reading of the statutory text—the one tying the prohibited violence to robbery or extortion—is correct. For one thing, it is the more natural reading. The text preceding the physical violence clause does not forbid obstructing, delaying, or affecting commerce; rather, it forbids obstructing, delaying, or affecting commerce “by robbery or extortion.” §1951(a) (emphasis added). This means that behavior that obstructs, delays, or affects commerce is a “violation” of the statute only if it also involves robbery or extortion (or related attempts or conspiracies). Consequently, the reference in the physical violence clause to actions or threats of violence “in furtherance of a plan or purpose to do anything in violation of this section” seems to mean acts or threats of violence in furtherance of a plan or purpose to engage in robbery or extortion, for that is the only kind of behavior that the section otherwise makes a violation. This restrictive reading is further supported by the fact that Congress often intends such statutory terms as “affect commerce” or “in commerce” to be read as terms of art connecting the congressional exercise of legislative authority with the constitutional provision (here, the Commerce Clause) granting that authority. See, e.g., Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 273. Such jurisdictional language may limit, but it will not primarily define, the behavior that the statute calls a “violation” of federal law. Cf. Jones v. United States, 529 U. S. 848, 854. Moreover, the statute’s history supports the more restrictive reading: Both of the Hobbs Act’s predecessor statutes made clear that the physical violence they prohibited was not violence in furtherance of a plan to injure commerce, but violence in furtherance of a plan to injure commerce through coercion or extortion (1934 Act) or through extortion or robbery (1946 Act). The Hobbs Act’s legislative history contains nothing to the contrary. That the present statutory language is less clear than the 1946 version does not reflect a congressional effort to redefine the crime. To the contrary, Congress revised the Act’s language in 1948 as part of its general revision of the Criminal Code, which “was not intended to create new crimes but to recodify those then in existence.” Morissette v. United States, 342 U. S. 246, 269, n. 28. The Court will not presume the revision worked a change in the underlying substantive law absent a clearly expressed intent to do so. Keene Corp. v. United States, 508 U. S. 200, 209. Here there is no evidence of any such intent. Finally, respondents’ interpretation broadens the Hobbs Act’s scope well beyond what case law has assumed. It would federalize much ordinary criminal behavior, ranging from simple assault to murder, that typically is the subject of state, not federal, prosecution. Congress did not intend the Hobbs Act to have so broad a reach. See, e.g., NOW II, supra, at 405. Other Courts of Appeals have rejected respondents’ construction of the Act. And in 1994, Congress enacted the Freedom of Access to Clinic Entrances Act, 18 U. S. C. §248(a)(3), which was aimed specifically at the type of activity at issue in this litigation, thereby suggesting that Congress did not believe that the Hobbs Act already addressed that activity. Pp. 5–9. (b) Respondents’ reliance on the canon of statutory construction favoring interpretations that give a function to each word in a statute, thereby avoiding linguistic superfluity, is misplaced. They claim that, because the definitions of robbery or extortion (or related attempts or conspiracies) already encompass robbery or extortion that take place through acts of violence (or related threats), see §§1951(b)(1) and (2), there would be no reason for §1951(a) to contain its physical violence clause unless Congress intended to create a freestanding offense. Petitioners, however, have found a small amount of additional work for the clause to do. The Scheidler petitioners point to a hypothetical mobster who threatens violence and demands payment from a business. Those threats constitute attempted extortion; but the subsequent acts of violence against a noncomplying business by the mobster’s subordinates might not constitute attempted extortion or be punishable as a conspiracy to commit extortion if the subordinates were not privy to the mobster’s plan, absent the specific prohibition of physical violence in furtherance of a plan to commit extortion. The Government adds that the clause permits prosecutors to bring multiple charges for the same conduct; e.g., a robber who injured bystanders could be charged with the separate Hobbs Act crimes of robbery and of using violence in furtherance of the robbery. While this additional work is concededly small, Congress’ intent is clear. Interpretive canons are designed to help courts determine what Congress intended, not to lead them to interpret the law contrary to that intent. Pp. 9–11. 91 Fed. Appx. 510, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the cases. Together with No. 04–1352, Operation Rescue v. National Organization for Women, Inc., et al., also on certiorari to the same court.
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A section of Title 18 of the United States Code (called the Hobbs Act) says that an individual commits a federal crime if he or she “obstructs, delays, or affects commerce” by (1) “robbery,” (2) “extortion,” or (3) “commit[ting] or threaten[ing] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.” §1951(a) (emphasis added). The dispute in these cases concerns the meaning of the underscored words, in particular the words, “in furtherance of a plan or purpose to do anything in violation of this section.” Does this phrase refer to (violence committed pursuant to) those plans or purposes that affect interstate commerce through robbery or extortion? Or does it refer to (violence committed pursuant to) those plans or purposes that affect interstate commerce, plain and simple? If the former, the statute governs only a limited subset of violent behavior, namely, behavior connected with robbery and extortion. If the latter, the statute governs a far broader range of human activity, namely, all violent actions (against persons or property) that affect interstate commerce. In our view, the former, more restrictive reading of the Act is the correct interpretation. I Petitioners are individuals (and organizations) who engage in pro-life, anti-abortion protest activities. Respondents are health care clinics that perform abortions and a pro-choice national nonprofit organization that supports the legal availability of abortions. In 1986, (pro-choice) respondents, believing that (pro-life) petitioners had tried to disrupt activities at health care clinics that perform abortions through violence and various other unlawful activities, brought this legal action, which sought damages and an injunction forbidding (pro-life) petitioners from engaging in such activities anywhere in the Nation. Respondents based their legal claims upon the Hobbs Act, certain other laws that forbid extortion, and a federal antiracketeering statute, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1962. Respondents argued that petitioners’ clinic-related protest activities amounted in context to extortion. They added that these extortionate acts created a “pattern of racketeering activity”—a pattern that RICO defines in terms of certain predicate acts that include acts of extortion. See §1961(1) (Supp. III). And they sought a permanent injunction, which they believed RICO authorized. See §1964 (2000 ed.). Initially, the District Court dismissed their complaint. It concluded that RICO requires proof that the alleged criminal acts were motivated by an economic purpose—a purpose that is lacking here. National Organization for Women, Inc. v. Scheidler, 765 F. Supp. 937 (ND Ill. 1991). The Court of Appeals for the Seventh Circuit affirmed. National Organization for Women, Inc. v. Scheidler, 968 F. 2d 612 (1992). But this Court held that the statute “requires no such economic motive,” and therefore reversed the Court of Appeals and remanded the case for further proceedings. National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 252 (1994). After trial, the jury found that petitioners had engaged in a host of extortionate, or extortion-related, acts. It awarded treble damages to two of the respondents (a matter not at issue here) and the District Court entered a nationwide injunction. See §§1964(a), (c). The Court of Appeals affirmed. 267 F. 3d 687 (2001). This Court again reversed. Scheidler v. National Organization for Women, Inc., 537 U. S. 393 (2003) (NOW II). We noted that the Hobbs Act defines “extortion” as necessarily including the improper “ ‘obtaining of property from another.’ ” Id., at 400 (quoting §1951(b)(2)). We pointed out that the claimed “property” consisted of “a woman’s right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear.” 537 U. S., at 400–401 (internal quotation marks omitted). We decided that “[w]hatever the outer boundaries may be, the effort to characterize petitioners’ actions here as an ‘obtaining of property from’ respondents is well beyond them.” Id., at 402. Accordingly, we held that “because they did not ‘obtain’ property from respondents,” petitioners “did not commit extortion” as defined by the Hobbs Act. Id., at 397. We found that the state extortion law violations, and other extortion-related violations, were flawed for the same reason and must also be set aside. Id., at 410. Our opinion concluded: “Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.” Id., at 411. On remand, the Court of Appeals did not order the District Court to terminate the cases or to vacate its injunction. Instead, the Court of Appeals considered respondents’ argument that the jury’s RICO verdict rested not only upon many instances of extortion-related conduct, but also upon four instances (or threats) of physical violence unrelated to extortion. 91 Fed. Appx. 510, 512 (2004). The Court of Appeals decided that the parties had not presented this theory to this Court and, as a result, we had no occasion to consider whether these four acts alone might constitute Hobbs Act violations (sufficient, as predicate acts under RICO, to support the nationwide injunction). See id., at 513. The Court of Appeals remanded the cases to the District Court to make that determination. Ibid. Petitioners sought certiorari to review this ruling. We granted the writ to consider the following three questions: (1) Whether the Court of Appeals improperly disregarded this Court’s mandate in NOW II by holding that the injunction issued by the District Court might not need to be vacated; (2) Whether the Hobbs Act forbids violent conduct unrelated to extortion or robbery; and (3) Whether RICO authorizes a private party to obtain an injunction. We now answer the second question. We hold that physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act. And since our answer to the second question requires an entry of judgment in petitioners’ favor, we shall not answer the first or third questions. II We first set forth the Hobbs Act’s text. The relevant statutory section imposes criminal liability on “[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section … .” 18 U. S. C. §1951(a) (emphasis added). The question, as we have said, concerns the meaning of the phrase that modifies the term “physical violence,” namely, the words “in furtherance of a plan or purpose to do anything in violation of this section.” Do those words refer to violence (1) that furthers a plan or purpose to “affec[t] commerce … by robbery or extortion,” or to violence (2) that furthers a plan or purpose simply to “affec[t] commerce”? We believe the former, more restrictive, reading of the text—the reading that ties the violence to robbery or extortion—is correct. For one thing, the language of the statute makes the more restrictive reading the more natural one. The text that precedes the physical violence clause does not forbid obstructing, delaying, or affecting commerce (or the movement of any article or commodity in commerce); rather, it forbids obstructing, delaying, or affecting commerce “by robbery or extortion.” Ibid. (emphasis added). This language means that behavior that obstructs, delays, or affects commerce is a “violation” of the statute only if that behavior also involves robbery or extortion (or related attempts or conspiracies). Consequently, the reference in the physical violence clause to actions or threats of violence “in furtherance of a plan or purpose to do anything in violation of this section” (emphasis added) would seem to mean acts or threats of violence in furtherance of a plan or purpose to engage in robbery or extortion, for that is the only kind of behavior that the section otherwise makes a violation. This restrictive reading is further supported by the fact that Congress often intends such statutory terms as “affect commerce” or “in commerce” to be read as terms of art connecting the congressional exercise of legislative authority with the constitutional provision (here, the Commerce Clause) that grants Congress that authority. See Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 273 (1995); Russell v. United States, 471 U. S. 858, 859 (1985). Such jurisdictional language may limit, but it will not primarily define, the behavior that the statute calls a “violation” of federal law. Cf. Jones v. United States, 529 U. S. 848, 854 (2000) (holding that by using the term “affecting … commerce,” “ ‘Congress did not define the crime described in [18 U. S. C.] §844(i) as the explosion of a building whose damage or destruction might affect interstate commerce,’ ” and noting that the Court must look to other “qualifying language” in the provision to define the offense). For another thing, the statute’s history supports the more restrictive reading. Congress enacted the Hobbs Act’s predecessor in 1934. See Anti-Racketeering Act, ch. 569, 48 Stat. 979 (reproduced in Appendix, infra). That predecessor Act prohibited coercion and extortion appropriately connected with interstate commerce, and placed these prohibitions in §§2(a) and 2(b), respectively. 48 Stat. 980. The Act went on in §2(c) to impose criminal liability on anyone who, in connection with interstate commerce, “[c]ommits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a) or (b).” Ibid.; see also NOW II, 537 U. S., at 407. The 1934 Act explicitly linked §2(c), the physical violence subsection, with §§2(a) and 2(b). It thereby made crystal clear that the physical violence that it prohibited was not violence in furtherance of a plan to injure commerce, but violence in furtherance of a plan to injure commerce through coercion or extortion. In 1946, Congress enacted a superseding law, namely, the Hobbs Act. Ch. 537, 60 Stat. 420 (reproduced in Appendix, infra). The new law changed the old law in two significant respects: It added robbery while omitting coercion. NOW II, supra, at 407; see United States v. Culbert, 435 U. S. 371, 377 (1978) (“The bill that eventually became the Hobbs Act … substituted specific prohibitions against robbery and extortion for the Anti-Racketeering Act’s language”). The new Act, like the old Act, was absolutely explicit in respect to the point here at issue, the necessary link between physical violence and other crimes (now extortion and robbery). The 1946 Hobbs Act reads as follows: “Sec. 2. Whoever in any way or degree obstructs, delays, or affects commerce, or the movement of any article or commodity in commerce, by robbery or extortion, shall be guilty of a felony. “Sec. 3. Whoever conspires with another or with others, or acts in concert with another or with others to do anything in violation of section 2 shall be guilty of a felony. “Sec. 4. Whoever attempts or participates in an attempt to do anything in violation of section 2 shall be guilty of a felony. “Sec. 5. Whoever commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of section 2 shall be guilty of a felony.” 60 Stat. 420 (emphasis added). As §2 makes clear, the statute prohibits robbery and extortion. As §5’s reference to §2 makes clear, the statute prohibits violence only when that violence furthers a plan or purpose to affect commerce by robbery or extortion. Each of the statute’s other sections reflects the same approach; each explicitly refers back to §2’s prohibition against robbery and extortion. The Act’s legislative history contains nothing to the contrary. Indeed, the Committee Reports and floor debates emphasized that “the purpose of the bill was ‘to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion as defined in the bill.’ ” Culbert, supra, at 377 (quoting H. R. Rep. No. 238, 79th Cong., 1st Sess., 9 (1945); emphasis added in Culbert); see Culbert, supra, at 376–378 (discussing legislative history). They nowhere suggested that Congress intended to make physical violence a freestanding crime. The present Hobbs Act language is less clear than the 1946 version. But the linguistic changes do not reflect a congressional effort to redefine the crime. To the contrary, Congress revised the Hobbs Act’s language in 1948 as part of its general revision of the Criminal Code. That “1948 Revision was not intended to create new crimes but to recodify those then in existence.” Morissette v. United States, 342 U. S. 246, 269, n. 28 (1952). This Court has written that it will “not presume that the revision worked a change in the underlying substantive law ‘unless an intent to make such [a] change[e] is clearly expressed.’ ” Keene Corp. v. United States, 508 U. S. 200, 209 (1993) (alteration made in Keene; quoting Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957)). And here there is no evidence of any such intent. Rather, the Reviser’s Notes indicate that the linguistic changes to the Hobbs Act simply amount to “changes in phraseology and arrangement necessary to effect consolidation.” H. R. Rep. No. 304, 80th Cong., 1st Sess., A131 (1947). Finally, respondents’ Hobbs Act interpretation broadens the Act’s scope well beyond what case law has assumed. It would federalize much ordinary criminal behavior, ranging from simple assault to murder, behavior that typically is the subject of state, not federal, prosecution. Decisions of this Court have assumed that Congress did not intend the Hobbs Act to have so broad a reach. See NOW II, 537 U. S., at 405 (noting that the Hobbs Act embodied extortion, which required the obtaining of property, not coercion); id., at 411 (Ginsburg, J., concurring) (coercion, which is not covered by the Hobbs Act, “more accurately describes the nature of petitioners’ [non-property-related] actions” (internal quotation marks omitted)); United States v. Enmons, 410 U. S. 396, 410 (1973) (Hobbs Act does not reach violent activity by union members seeking higher wages because such violence is not extortion and Congress did not intend to “cover all overtly coercive conduct in the course of” a labor dispute). Not surprisingly, other Courts of Appeals that have considered the question have rejected respondents’ construction of the Act. See United States v. Yankowski, 184 F. 3d 1071 (CA9 1999); United States v. Franks, 511 F. 2d 25 (CA6 1975). And in 1994, Congress enacted a specific statute aimed directly at the type of abortion clinic violence and other activity at issue in this litigation, thereby suggesting it did not believe that the Hobbs Act already addressed that activity. See Freedom of Access to Clinic Entrances Act, 18 U. S. C. §248(a)(3) (imposing criminal liability on anyone who “intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services”). III Respondents’ contrary claim rests primarily upon a canon of statutory construction that favors interpretations that give a function to each word in a statute, thereby avoiding linguistic superfluity. See United States v. Menasche, 348 U. S. 528, 538–539 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute’ ” (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883))). They claim that, because the definitions of robbery or extortion (or related attempts or conspiracies) already encompass robbery or extortion that takes place through acts of violence (or related threats), “[t]here would be no reason for the statute to include the clause prohibiting violence and threats of violence” unless Congress intended to create a freestanding offense. Brief for Respondents 25; see 18 U. S. C. §1951(b)(1) (defining “robbery” as the “unlawful taking or obtaining of personal property … by means of actual or threatened force, or violence” (emphasis added)); §1951(b)(2) (defining “extortion” as “the obtaining of property from another … by wrongful use of actual or threatened force, violence, or fear” (emphasis added)). Petitioners, however, have found a small amount of additional work for the words to do. Brief for Petitioners Scheidler et al. 33–36; see also Brief for United States as Amicus Curiae 11–12. The Scheidler petitioners point to a hypothetical mobster who threatens violence and demands payment from a business. Those threats constitute attempted extortion; but the subsequent acts of violence against a noncomplying business by the subordinates of that mobster may not constitute attempted extortion and may not be punishable as a conspiracy to commit extortion if the subordinates were not privy to the mobster’s plan. A specific prohibition of physical violence in furtherance of a plan to commit extortion would bring the subordinates’ behavior within the statute’s coverage. The United States adds that the physical violence clause permits prosecutors to bring multiple charges for the same conduct. For instance, the clause would apply to a defendant who injured bystanders during a robbery, permitting the Government to charge that defendant with the Hobbs Act crime of robbery and the separate Hobbs Act crime of using violence in furtherance of the robbery. Tr. of Oral Arg. 22. We concede that this additional work is small. But the need for language to cover such instances, or perhaps simply a desire to emphasize the problem of violence, led Congress in the original 1946 version of the Hobbs Act to make clear that the statute prohibited, not all physical violence, but only physical violence in furtherance of a plan or purpose to engage in robbery or extortion. See supra, at 7–8. And it is similarly clear that Congress intended to carry this view forward into the 1948 recodification. See supra, at 8–9. The canons of interpretation cannot lead us to a contrary conclusion. Those canons are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent. Chickasaw Nation v. United States, 534 U. S. 84, 94 (2001) (noting that “canons are not mandatory rules” but guides “designed to help judges determine the Legislature’s intent,” and that “other circumstances evidencing congressional intent can overcome their force”). IV We conclude that Congress did not intend to create a freestanding physical violence offense in the Hobbs Act. It did intend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the statute refers to as robbery or extortion (and related attempts or conspiracies). The judgment of the Court of Appeals is reversed, and the cases are remanded for entry of judgment for petitioners. It is so ordered. Justice Alito took no part in the consideration or decision of these cases. APPENDIX TO OPINION OF THE COURT A The Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, provided: “AN ACT “To protect trade and commerce against interference by violence, threats, coercion, or intimidation. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the term ‘trade or commerce’, as used herein, is defined to mean trade or commerce between any States, with foreign nations, in the District of Columbia, in any Territory of the United States, between any such Territory or the District of Columbia and any State or other Territory, and all other trade or commerce over which the United States has constitutional jurisdiction. “Sec. 2. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce— “(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchase or rental of property or protective services, not including, however, the payment of wages of a bona-fide employer to a bona-fide employee; or “(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right; or “(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a) or (b); or “(d) Conspires or acts concertedly with any other person or persons to commit any of the foregoing acts; shall, upon conviction thereof, be guilty of a felony and shall be punished by imprisonment from one to ten years or by a fine of $10,000, or both. “Sec. 3. (a) As used in this Act the term ‘wrongful’ means in violation of the criminal laws of the United States or of any State or Territory. “(b) The terms ‘property’, ‘money’, or ‘valuable considerations’ used herein shall not be deemed to include wages paid by a bona-fide employer to a bona-fide employee.” B Title I of The Hobbs Anti-Racketeering Act of 1946, ch. 537, 60 Stat. 420, provided: “Sec. 1. As used in this title— “(a) The term ‘commerce’ means (1) commerce between any point in a State, Territory, or the District of Columbia and any point outside thereof, or between points within the same State, Territory, or the District of Columbia but through any place outside thereof, and (2) commerce within the District of Columbia or any Territory, and (3) all other commerce over which the United States has jurisdiction; and the term ‘ Territory’ means any Territory or possession of the United States. “(b) The term ‘robbery’ means the unlawful taking or obtaining of personal property, from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or anyone in his company at the time of the taking or obtaining. “(c) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. “Sec. 2. Whoever in any way or degree obstructs, delays, or affects commerce, or the movement of any article or commodity in commerce, by robbery or extortion, shall be guilty of a felony. “Sec. 3. Whoever conspires with another or with others, or acts in concert with another or with others to do anything in violation of section 2 shall be guilty of a felony. “Sec. 4. Whoever attempts or participates in an attempt to do anything in violation of section 2 shall be guilty of a felony. “Sec. 5. Whoever commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of section 2 shall be guilty of a felony. “Sec. 6. Whoever violates any section of this title shall, upon conviction thereof, be punished by imprisonment for not more than twenty years or by a fine of not more than $10,000, or both.” C The Hobbs Act, 18 U. S. C. §1951, as amended in 1948, provides: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. “(b) As used in this section— “(1) The term ‘robbery’ means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. “(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. “(3) The term ‘commerce’ means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. “(c) This section shall not be construed to repeal, modify or affect section 17 of Title 15, section 52, 101–115, 151–166 of Title 29 or sections 151–188 of Title 45.”
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547.US.356
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Petitioner Sereboffs are beneficiaries under a health insurance plan administered by respondent Mid Atlantic and covered by the Employee Retirement Income Security Act of 1974 (ERISA). The plan provides for payment of covered medical expenses and has an “Acts of Third Parties” provision. This provision requires a beneficiary who is injured as a result of an act or omission of a third party to reimburse Mid Atlantic for benefits it pays on account of those injuries, if the beneficiary recovers for those injuries from the third party. The Sereboffs were involved in an automobile accident and suffered injuries. The plan paid the couple’s medical expenses. The Sereboffs sought compensatory damages for the accident from third parties in state court. After the Sereboffs settled their tort suit, Mid Atlantic filed suit in District Court under §502(a)(3) of ERISA, seeking to collect from the Sereboffs’ tort recovery the medical expenses it had paid on the Sereboffs’ behalf. The Sereboffs agreed to set aside from their tort recovery a sum equal to the amount Mid Atlantic claimed, and preserve this sum in an investment account pending the outcome of the suit. The court found in Mid Atlantic’s favor and ordered the Sereboffs to turn over the amount set aside. The Fourth Circuit affirmed in relevant part, and observed that the Courts of Appeals are divided on the question whether §502(a)(3) authorizes recovery in these circumstances. This Court granted review to resolve this disagreement. Held: Mid Atlantic’s action properly sought “equitable relief” under §502(a)(3). Pp. 3–11. (a) A fiduciary may bring a civil action under §502(a)(3)(B) “to obtain … appropriate equitable relief … to enforce … the terms of the plan.” The only question here is whether the relief requested was “equitable.” In Mertens v. Hewitt Associates, 508 U. S. 248, this Court construed §502(a)(3)(B) to authorize only “those categories of relief that were typically available in equity,” and thus rejected a claim that this Court found sought “nothing other than compensatory damages.” Id., at 207–208. This Court elaborated on this construction of §502(a)(3) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, which involved a provision in an ERISA plan similar to the “Acts of Third Parties” provision in the Sereboffs’ plan. Relying on such a provision, Great-West sought equitable restitution of benefits it had paid when Knudson recovered in tort from a third party. In considering whether §502(a)(3)(b) authorized such relief, this Court asked whether the restitutionary remedy Great-West sought would have been equitable in “the days of the divided bench,” id., at 212. This Court found that it would not have been equitable, because the funds Great-West sought were not in Knudson’s possession but had been placed in a trust under California law. That impediment is not present here. Mid Atlantic sought identifiable funds within the Sereboffs’ possession and control—that part of the tort settlement due Mid Atlantic under the ERISA plan and set aside in the investment account. Pp. 3–5. (b) This Court’s case law from the days of the divided bench confirms that Mid Atlantic’s claim is equitable. In Barnes v. Alexander, 232 U. S. 117, attorney Barnes promised two other attorneys “one-third of the contingent fee” he expected in a case, id., at 119. Based on “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing,” id., at 121, the Court found that Barnes’ undertaking “create[d] a lien” upon the portion of the recovery due him from the client, ibid., which the other attorneys could “follow … into [Barnes’] hands” “as soon as [the fund] was identified,” id., at 123. The “Acts of Third Parties” provision in the Sereboffs’ plan, like Barnes’ promise, specifically identified a particular fund distinct from the Sereboffs’ general assets, and a particular share of that fund to which Mid Atlantic was entitled. Thus, Mid Atlantic could rely on a “familiar rul[e] of equity” to collect for the medical bills it had paid by following a portion of the recovery “into the [Sereboffs’] hands” “as soon as [the settlement fund] was identified,” and imposing on that portion a constructive trust or equitable lien. Ibid. The Sereboffs object that Mid Atlantic’s suit would not have satisfied the strict tracing rules that they say accompanied equitable restitution at common law. But Barnes confirms that no such tracing requirement applies to equitable liens imposed by agreement or assignment, like that in Barnes itself. And Knudson did not endorse application of all restitutionary conditions, like the tracing rules the Sereboffs identify, to every action for an equitable lien under §502(a)(3). Knudson simply held that equitable restitution was unavailable because the funds Great-West sought were not in Knudson’s possession. The Sereboffs also argue that equitable relief is inappropriate, even under Barnes, because at the time they agreed to the plan terms, no fund existed in which they could grant Mid Atlantic an equitable interest. But Barnes explicitly disapproved of a rule requiring identification at the time a contract is made of the fund to which a lien specified in the contract attached. The Sereboffs also claim that the rule announced in Barnes applies only to equitable liens claimed under an attorney’s contingency fee arrangement. But Barnes did not attach any particular significance to the identify of the parties seeking recovery, and other cases of this Court, not involving attorneys’ contingency fees, have applied the same “familiar rul[e] of equity” that Barnes did. See, e.g., Walker v. Brown, 165 U. S. 654. Pp. 5–10. (c) The Sereboffs’ contention that the lower courts erred in allowing enforcement of the “Acts of Third Parties” provision, without imposing limitations that would apply to an equitable subrogation action, is rejected. Mid Atlantic’s claim is not considered equitable because it is a subrogation claim. Rather, it is considered equitable because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by Barnes. Pp. 10–11. 407 F. 3d 212, affirmed in relevant part. Roberts, C. J., delivered the opinion for a unanimous Court.
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In this case we consider again the circumstances in which a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) may sue a beneficiary for reimbursement of medical expenses paid by the ERISA plan, when the beneficiary has recovered for its injuries from a third party. I Marlene Sereboff ’s employer sponsors a health insurance plan administered by respondent Mid Atlantic Medical Services, Inc., and covered by ERISA, 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq. (2000 ed. and Supp. III). Marlene Sereboff and her husband Joel are beneficiaries under the plan. The plan provides for payment of certain covered medical expenses and contains an “Acts of Third Parties” provision. This provision “applies when [a beneficiary is] sick or injured as a result of the act or omission of another person or party,” and requires a beneficiary who “receives benefits” under the plan for such injuries to “reimburse [Mid Atlantic]” for those benefits from “[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise).” App. to Pet. for Cert. 38a. The provision states that “[Mid Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees in writing to a reduction.” Ibid. The Sereboffs were involved in an automobile accident in California and suffered injuries. Pursuant to the plan’s coverage provisions, the plan paid the couple’s medical expenses. The Sereboffs filed a tort action in state court against several third parties, seeking compensatory damages for injuries suffered as a result of the accident. Soon after the suit was commenced, Mid Atlantic sent the Sereboffs’ attorney a letter asserting a lien on the anticipated proceeds from the suit, for the medical expenses Mid Atlantic paid on the Sereboffs’ behalf. App. 87–90. On several occasions over the next 2 years, Mid Atlantic sent similar correspondence to the attorney and to the Sereboffs, repeating its claim to a lien on a portion of the Sereboffs’ recovery, and detailing the medical expenses as they accrued and were paid by the plan. The Sereboffs’ tort suit eventually settled for $750,000. Neither the Sereboffs nor their attorney sent any money to Mid Atlantic in satisfaction of its claimed lien which, after Mid Atlantic completed its payments on the Sereboffs’ behalf, totaled $74,869.37. Mid Atlantic filed suit in District Court under §502(a)(3) of ERISA, 29 U. S. C. §1132(a)(3), seeking to collect from the Sereboffs the medical expenses it had paid on their behalf. Since the Sereboffs’ attorney had already distributed the settlement proceeds to them, Mid Atlantic sought a temporary restraining order and preliminary injunction requiring the couple to retain and set aside at least $74,869.37 from the proceeds. The District Court approved a stipulation by the parties, under which the Sereboffs agreed to “preserve $74,869.37 of the settlement funds” in an investment account, “until the [District] Court rules on the merits of this case and all appeals, if any, are exhausted.” App. 69. On the merits, the District Court found in Mid Atlantic’s favor and ordered the Sereboffs to pay Mid Atlantic the $74,869.37, plus interest, with a deduction for Mid Atlantic’s share of the attorney’s fees and court costs the Sereboffs had incurred in state court. See 303 F. Supp. 2d 691, 316 F. Supp. 2d 265 (Md. 2004). The Sereboffs appealed and the Fourth Circuit affirmed in relevant part. 407 F. 3d 212 (2005). The Fourth Circuit observed that the Courts of Appeal are divided on the question whether §502(a)(3) authorizes recovery in these circumstances. See id., at 219–220, n. 7.[Footnote 1] We granted certiorari to resolve the disagreement. 546 U. S. ___ (2005). II A A fiduciary may bring a civil action under §502(a)(3) of ERISA “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U. S. C. §1132(a)(3). There is no dispute that Mid Atlantic is a fiduciary under ERISA and that its suit in District Court was to “enforce … the terms of ” the “Acts of Third Parties” provision in the Sereboffs’ plan. The only question is whether the relief Mid Atlantic requested from the District Court was “equitable” under §502(a)(3)(B). This is not the first time we have had occasion to clarify the scope of the remedial power conferred on district courts by §502(a)(3)(B). In Mertens v. Hewitt Associates, 508 U. S. 248 (1993), we construed the provision to authorize only “those categories of relief that were typically available in equity,” and thus rejected a claim that we found sought “nothing other than compensatory damages.” Id., at 255–256. We elaborated on this construction of §502(a)(3)(B) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), which involved facts similar to those in this case. Much like the “Acts of Third Parties” provision in the Sereboffs’ plan, the plan in Knudson reserved “ ‘a first lien upon any recovery, whether by settlement, judgment or otherwise,’ that the beneficiary receives from [a] third party.” Id., at 207. After Knudson was involved in a car accident, Great-West paid medical bills on her behalf and, when she recovered in tort from a third party for her injuries, Great-West sought to collect from her for the medical bills it had paid. Id., at 207–209. In response to the argument that Great-West’s claim in Knudson was for “restitution” and thus equitable under §502(a)(3)(B) and Mertens, we noted that “not all relief falling under the rubric of restitution [was] available in equity.” 534 U. S., at 212. To decide whether the restitutionary relief sought by Great-West was equitable or legal, we examined cases and secondary legal materials to determine if the relief would have been equitable “[i]n the days of the divided bench.” Ibid. We explained that one feature of equitable restitution was that it sought to impose a constructive trust or equitable lien on “particular funds or property in the defendant’s possession.” Id., at 213. That requirement was not met in Knudson, because “the funds to which petitioners claim[ed] an entitlement” were not in Knudson’s possession, but had instead been placed in a “Special Needs Trust” under California law. Id., at 207, 214. The kind of relief Great-West sought, therefore, was “not equitable—the imposition of a constructive trust or equitable lien on particular property—but legal—the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson].” Id., at 214. We accordingly determined that the suit could not proceed under §502(a)(3). Ibid. That impediment to characterizing the relief in Knudson as equitable is not present here. As the Fourth Circuit explained below, in this case Mid Atlantic sought “specifically identifiable” funds that were “within the possession and control of the Sereboffs”—that portion of the tort settlement due Mid Atlantic under the terms of the ERISA plan, set aside and “preserved [in the Sereboffs’] investment accounts.” 407 F. 3d, at 218. Unlike Great-West, Mid Atlantic did not simply seek “to impose personal liability … for a contractual obligation to pay money.” Knudson, 534 U. S., at 210. It alleged breach of contract and sought money, to be sure, but it sought its recovery through a constructive trust or equitable lien on a specifically identified fund, not from the Sereboffs’ assets generally, as would be the case with a contract action at law. ERISA provides for equitable remedies to enforce plan terms, so the fact that the action involves a breach of contract can hardly be enough to prove relief is not equitable; that would make §502(a)(3)(B)(ii) an empty promise. This Court in Knudson did not reject Great-West’s suit out of hand because it alleged a breach of contract and sought money, but because Great-West did not seek to recover a particular fund from the defendant. Mid Atlantic does. B While Mid Atlantic’s case for characterizing its relief as equitable thus does not falter because of the nature of the recovery it seeks, Mid Atlantic must still establish that the basis for its claim is equitable. See id., at 213 (whether remedy “is legal or equitable depends on ‘the basis for [the plaintiff ’s] claim’ and the nature of the underlying remedies sought”). Our case law from the days of the divided bench confirms that Mid Atlantic’s claim is equitable. In Barnes v. Alexander, 232 U. S. 117 (1914), for instance, attorneys Street and Alexander performed work for Barnes, another attorney, who promised them “one-third of the contingent fee” he expected in the case. Id., at 119. In upholding their equitable claim to this portion of the fee, Justice Holmes recited “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id., at 121. On the basis of this rule, he concluded that Barnes’ undertaking “create[d] a lien” upon the portion of the monetary recovery due Barnes from the client, ibid., which Street and Alexander could “follow … into the hands of … Barnes,” “as soon as [the fund] was identified,” id., at 123. Much like Barnes’ promise to Street and Alexander, the “Acts of Third Parties” provision in the Sereboffs’ plan specifically identified a particular fund, distinct from the Sereboffs’ general assets—“[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise)”—and a particular share of that fund to which Mid Atlantic was entitled—“that portion of the total recovery which is due [Mid Atlantic] for benefits paid.” App. to Pet. for Cert. 38a. Like Street and Alexander in Barnes, therefore, Mid Atlantic could rely on a “familiar rul[e] of equity” to collect for the medical bills it had paid on the Sereboffs’ behalf. Barnes, supra, at 121. This rule allowed them to “follow” a portion of the recovery “into the [Sereboffs’] hands” “as soon as [the settlement fund] was identified,” and impose on that portion a constructive trust or equitable lien. 232 U. S., at 123. The Sereboffs object that Mid Atlantic’s suit would not have satisfied the conditions for “equitable restitution” at common law, particularly the “strict tracing rules” that allegedly accompanied this form of relief. Reply Brief for Petitioners 8. When an equitable lien was imposed as restitutionary relief, it was often the case that an asset belonging to the plaintiff had been improperly acquired by the defendant and exchanged by him for other property. A central requirement of equitable relief in these circumstances, the Sereboffs argue, was the plaintiff ’s ability to “ ‘trac[e]’ the asset into its products or substitutes,” or “trace his money or property to some particular funds or assets.” 1 D. Dobbs, Law of Remedies §4.3(2), pp. 591, n. 10, 592 (2d ed. 1993). But as the Sereboffs themselves recognize, an equitable lien sought as a matter of restitution, and an equitable lien “by agreement,” of the sort at issue in Barnes, were different species of relief. See Brief for Petitioners 24–25; Reply Brief for Petitioners 11; see also 1 Dobbs, supra, §4.3(3), at 601; 1 G. Palmer, Law of Restitution §1.5, p. 20 (1978). Barnes confirms that no tracing requirement of the sort asserted by the Sereboffs applies to equitable liens by agreement or assignment: The plaintiffs in Barnes could not identify an asset they originally possessed, which was improperly acquired and converted into property the defendant held, yet that did not preclude them from securing an equitable lien. To the extent Mid Atlantic’s action is proper under Barnes, therefore, its asserted inability to satisfy the “strict tracing rules” for “equit- able restitution” is of no consequence. Reply Brief for Petitioners 8. The Sereboffs concede as much, stating that they “do not contend—and have never suggested—that any tracing was historically required when an equitable lien was imposed by agreement.” Id., at 11. Their argument is that such tracing was required when an equitable lien was “predicated on a theory of equitable restitution.” Ibid. The Sereboffs appear to assume that Knudson endorsed application of all the restitutionary conditions—including restitutionary tracing rules—to every action for an equitable lien under §502(a)(3). This assumption is inaccurate. Knudson simply described in general terms the conditions under which a fiduciary might recover when it was seeking equitable restitution under a provision like that at issue in this case. There was no need in Knudson to catalog all the circumstances in which equitable liens were available in equity; Great-West claimed a right to recover in restitution, and the Court concluded only that equitable restitution was unavailable because the funds sought were not in Knudson’s possession. 534 U. S., at 214. The Sereboffs argue that, even under Barnes, equitable relief would not have been available to fiduciaries relying on plan provisions like the one at issue here, because when the beneficiary agrees to such a provision “no third-party recovery” exists which the beneficiary can “place … beyond his control and grant [the fiduciary] a complete and present right therein.” Brief for Petitioners 25–26 (internal quotation marks omitted). It may be true that, in contract cases, equity originally required identification at the time the contract was made of the fund to which a lien specified in the contract attached. See, e.g., Trist v. Child, 21 Wall. 441, 447 (1875) (“[A] mere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an appropriation of the fund pro tanto”). But Barnes explicitly disapproved of this rule, observing that Trist addressed the issue only in dicta (since the contract containing the lien provision in Trist was illegal), and treating the “question as at large,” even in light of earlier opinions that had dealt with it head on. Barnes, supra, at 120 (citing Trist, supra; Christmas v. Russell, 14 Wall. 69 (1872); Wright v. Ellison, 1 Wall. 16 (1864)). Apart from those cases, which Barnes discredited, the Sereboffs offer little to undermine the plain indication in Barnes that the fund over which a lien is asserted need not be in existence when the contract containing the lien provision is executed. See 4 S. Symons, Pomeroy’s Equity Jurisprudence §1236, pp. 699–700 (5th ed. 1941) (“[A]n agreement to charge, or to assign … property not yet in existence,” although “creat[ing] no legal estate or interest in the things when they afterwards come into existence … does constitute an equitable lien upon the property” just as would “a lien upon specific things existing and owned by the contracting party at the date of the contract”); Peugh v. Porter, 112 U. S. 737, 742 (1885) (“[I]n contemplation of equity, [it] is not material” that the “very fund now in dispute” was “not … in existence” when an equitable lien over that fund was created). Indeed, the most they can muster in this regard are several state cases predating Barnes and a single decision that rests, contrary to the Sereboffs’ characterization, on the simple conclusion that a contractual provision purporting to secure an equitable lien did not properly do so. See Brief for Petitioners 26; Reply Brief for Petitioners 12; Taylor v. Wharton, 43 App. D. C. 104 (1915). The Sereboffs finally fall back on the argument that Barnes announced a special rule for attorneys claiming an equitable lien over funds promised under a contingency fee arrangement. Outside of this context, they say, the “typical rules regarding equitable liens by assignment” persisted and would have prevented recovery here. Reply Brief for Petitioners 13. But Barnes did not attach any particular significance to the identity of the parties seeking recovery. See 232 U. S., at 119. And as Barnes itself makes clear, other cases of this Court—not involving attorneys’ contingency fees—apply the same “familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id., at 121. In Walker v. Brown, 165 U. S. 654 (1897), for instance, the Court approved an equitable lien over municipal bonds transferred to a company to facilitate its business. When a supplier of the company suspended shipments because of delinquent debts, the individual who had transferred the bonds assured the supplier that “ ‘any indebtedness that they may be owing you at any time, shall be paid before the return to me of these bonds … and that these bonds … are at the risk of the business of [the company], so far as any claim you may have against [it].’ ” Id., at 663. The Court found that this undertaking created an equitable lien on the bonds, which the supplier could enforce against the individual after the bonds had been returned to him when the company became insolvent. Id., at 666. As in Barnes, the Court resolved the case by applying general equitable principles, stating that “[t]o dedicate property to a particular purpose, to provide that a specified creditor and that creditor alone shall be authorized to seek payment of his debt from the property or its value, is unmistakably to create an equitable lien.” 165 U. S., at 666. C Shifting gears, the Sereboffs contend that the lower courts erred in allowing enforcement of the “Acts of Third Parties” provision, without imposing various limitations that they say would apply to “truly equitable relief grounded in principles of subrogation.” Reply Brief for Petitioners 5. According to the Sereboffs, they would in an equitable subrogation action be able to assert certain equitable defenses, such as the defense that subrogation may be pursued only after a victim had been made whole for his injuries. Id., at 5–6. Such defenses should be available against Mid Atlantic’s action, the Sereboffs claim, despite the plan provision that “[Mid Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees in writing to a reduction.” App. to Pet. for Cert. 38a. But Mid Atlantic’s claim is not considered equitable because it is a subrogation claim. As explained, Mid Atlantic’s action to enforce the “Acts of Third Parties” provision qualifies as an equitable remedy because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by our decision in Barnes. See 4 Palmer, Law of Restitution §23.18(d), at 470 (A subrogation lien “is not an express lien based on agreement, but instead is an equitable lien impressed on moneys on the ground that they ought to go to the insurer”). Mid Atlantic need not characterize its claim as a freestanding action for equitable subrogation. Accordingly, the parcel of equitable defenses the Sereboffs claim accompany any such action are beside the point.[Footnote 2] * * * Under the teaching of Barnes and similar cases, Mid Atlantic’s action in the District Court properly sought “equitable relief ” under §502(a)(3); the judgment of the Fourth Circuit is affirmed in relevant part. It is so ordered. Footnote 1 Compare Administrative Comm. of Wal-Mart Assoc. Health & Welfare Plan v. Willard, 393 F. 3d 1119 (CA10 2004), Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F. 3d 348 (CA5 2003), and Administrative Comm. of Wal-Mart Stores, Inc. v. Varco, 338 F. 3d 680 (CA7 2003), with Qualchoice, Inc. v. Rowland, 367 F. 3d 638 (CA6 2004), and Westaff (USA) Inc. v. Arce, 298 F. 3d 1164 (CA9 2002). Footnote 2 The Sereboffs argue that, even if the relief Mid Atlantic sought was “equitable” under §502(a)(3), it was not “appropriate” under that provision in that it contravened principles like the make-whole doctrine. Neither the District Court nor the Court of Appeals considered the argument that Mid Atlantic’s claim was not “appropriate” apart from the contention that it was not “equitable,” and from our examination of the record it does not appear that the Sereboffs raised this distinct assertion below. We decline to consider it for the first time here. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).
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547.US.1
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Petitioners, Texaco Inc. and Shell Oil Co., collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western United States under the two companies’ original brand names. After Equilon set a single price for both brands, respondents, Texaco and Shell Oil service station owners, brought suit alleging that, by unifying gas prices under the two brands, petitioners had violated the per se rule against price fixing long recognized under §1 of the Sherman Act, see, e.g., Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643, 647. Granting petitioners summary judgment, the District Court determined that the rule of reason, rather than a per se rule, governs respondents’ claim, and that, by eschewing rule of reason analysis, respondents had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing petitioners’ position as a request for an exception to the per se price-fixing prohibition, and rejecting that request. Held: It is not per se illegal under §1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which it sells its products. Although §1 prohibits “[e]very contract [or] combination … in restraint of trade,” 15 U. S. C. §1, this Court has not taken a literal approach to that language, recognizing, instead, that Congress intended to outlaw only unreasonable restraints, e.g., State Oil Co. v. Khan, 522 U. S. 3, 10. Under rule of reason analysis, antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive. See, e.g., id., at 10–19. Per se liability is reserved for “plainly anticompetitive” agreements. National Soc. of Professional Engineers v. United States, 435 U. S. 679, 692. While “horizontal” price-fixing agreements between two or more competitors are per se unlawful, see, e.g., Catalano, supra, at 647, this case does not present such an agreement, because Texaco and Shell Oil did not compete with one another in the relevant market—i.e., gasoline sales to western service stations—but instead participated in that market jointly through Equilon. When those who would otherwise be competitors pool their capital and share the risks of loss and opportunities for profit, they are regarded as a single firm competing with other sellers in the market. Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 356. As such, Equilon’s pricing policy may be price fixing in a literal sense, but it is not price fixing in the antitrust sense. The court below erred in reaching the opposite conclusion under the ancillary restraints doctrine, which governs the validity of restrictions imposed by a legitimate joint venture on nonventure activities. That doctrine has no application here, where the challenged business practice involves the core activity of the joint venture itself—the pricing of the very goods produced and sold by Equilon. Pp. 3–6. 369 F. 3d 1108, reversed. Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the cases. Together with No. 04–814, Shell Oil Co. v. Dagher et al., also on certiorari to the same court.
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From 1998 until 2002, petitioners Texaco Inc. and Shell Oil Co. collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western United States under the original Texaco and Shell Oil brand names. Respondents, a class of Texaco and Shell Oil service station owners, allege that petitioners engaged in unlawful price fixing when Equilon set a single price for both Texaco and Shell Oil brand gasoline. We granted certiorari to determine whether it is per se illegal under §1 of the Sherman Act, 15 U. S. C. §1, for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. We conclude that it is not, and accordingly we reverse the contrary judgment of the Court of Appeals. I Historically, Texaco and Shell Oil have competed with one another in the national and international oil and gasoline markets. Their business activities include refining crude oil into gasoline, as well as marketing gasoline to downstream purchasers, such as the service stations represented in respondents’ class action. In 1998, Texaco and Shell Oil formed a joint venture, Equilon, to consolidate their operations in the western United States, thereby ending competition between the two companies in the domestic refining and marketing of gasoline. Under the joint venture agreement, Texaco and Shell Oil agreed to pool their resources and share the risks of and profits from Equilon’s activities. Equilon’s board of directors would comprise representatives of Texaco and Shell Oil, and Equilon gasoline would be sold to downstream purchasers under the original Texaco and Shell Oil brand names. The formation of Equilon was approved by consent decree, subject to certain divestments and other modifications, by the Federal Trade Commission, see In re Shell Oil Co., 125 F. T. C. 769 (1998), as well as by the state attorneys general of California, Hawaii, Oregon, and Washington. Notably, the decrees imposed no restrictions on the pricing of Equilon gasoline. After the joint venture began to operate, respondents brought suit in district court, alleging that, by unifying gasoline prices under the two brands, petitioners had violated the per se rule against price fixing that this Court has long recognized under §1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. §1. See, e.g., Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643, 647 (1980) (per curiam). The District Court awarded summary judgment to Texaco and Shell Oil. It determined that the rule of reason, rather than a per se rule or the quick look doctrine, governs respondents’ claim, and that, by eschewing rule of reason analysis, respondents had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing petitioners’ position as a request for an “exception to the per se prohibition on price fixing,” and rejecting that request. Dagher v. Saudi Refining, Inc., 369 F. 3d 1108, 1116 (2004). We consolidated Texaco’s and Shell Oil’s separate petitions and granted certiorari to determine the extent to which the per se rule against price fixing applies to an important and increasingly popular form of business organization, the joint venture. 545 U. S. ___ (2005). II Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” 15 U. S. C. §1. This Court has not taken a literal approach to this language, however. See, e.g., State Oil Co. v. Khan, 522 U. S. 3, 10 (1997) (“[T]his Court has long recognized that Congress intended to outlaw only unreasonable restraints” (emphasis added)). Instead, this Court presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful. See, e.g., id., at 10–19 (concluding that vertical price-fixing arrangements are subject to the rule of reason, not per se liability). Per se liability is reserved for only those agreements that are “so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.” National Soc. of Professional Engineers v. United States, 435 U. S. 679, 692 (1978). Accordingly, “we have expressed reluctance to adopt per se rules … ‘where the economic impact of certain practices is not immediately obvious.’ ” State Oil, supra, at 10 (quoting FTC v. Indiana Federation of Dentists, 476 U. S. 447, 458–459 (1986)). Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful. See, e.g., Catalano, supra, at 647. These cases do not present such an agreement, however, because Texaco and Shell Oil did not compete with one another in the relevant market—namely, the sale of gasoline to service stations in the western United States—but instead participated in that market jointly through their investments in Equilon.[Footnote 1] In other words, the pricing policy challenged here amounts to little more than price setting by a single entity—albeit within the context of a joint venture—and not a pricing agreement between competing entities with respect to their competing products. Throughout Equilon’s existence, Texaco and Shell Oil shared in the profits of Equilon’s activities in their role as investors, not competitors. When “persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit … such joint ventures [are] regarded as a single firm competing with other sellers in the market.” Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 356 (1982). As such, though Equilon’s pricing policy may be price fixing in a literal sense, it is not price fixing in the antitrust sense. See Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 9 (1979) (“When two partners set the price of their goods or services they are literally ‘price fixing,’ but they are not per se in violation of the Sherman Act”). This conclusion is confirmed by respondents’ apparent concession that there would be no per se liability had Equilon simply chosen to sell its gasoline under a single brand. See Tr. of Oral Arg. 34. We see no reason to treat Equilon differently just because it chose to sell gasoline under two distinct brands at a single price. As a single entity, a joint venture, like any other firm, must have the discretion to determine the prices of the products that it sells, including the discretion to sell a product under two different brands at a single, unified price. If Equilon’s price unification policy is anticompetitive, then respondents should have challenged it pursuant to the rule of reason.[Footnote 2] But it would be inconsistent with this Court’s antitrust precedents to condemn the internal pricing decisions of a legitimate joint venture as per se unlawful.[Footnote 3] The court below reached the opposite conclusion by invoking the ancillary restraints doctrine. 369 F. 3d, at 1118–1124. That doctrine governs the validity of restrictions imposed by a legitimate business collaboration, such as a business association or joint venture, on nonventure activities. See, e.g., National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 113–115 (1984); Citizen Publishing Co. v. United States, 394 U. S. 131, 135–136 (1969). Under the doctrine, courts must determine whether the nonventure restriction is a naked restraint on trade, and thus invalid, or one that is ancillary to the legitimate and competitive purposes of the business association, and thus valid. We agree with petitioners that the ancillary restraints doctrine has no application here, where the business practice being challenged involves the core activity of the joint venture itself—namely, the pricing of the very goods produced and sold by Equilon. And even if we were to invoke the doctrine in these cases, Equilon’s pricing policy is clearly ancillary to the sale of its own products. Judge Fernandez, dissenting from the ruling of the court below, put it well: “In this case, nothing more radical is afoot than the fact that an entity, which now owns all of the production, transportation, research, storage, sales and distribution facilities for engaging in the gasoline business, also prices its own products. It decided to price them the same, as any other entity could. What could be more integral to the running of a business than setting a price for its goods and services?” 369 F. 3d, at 1127. See also Broadcast Music, supra, at 23 (“Joint ventures and other cooperative arrangements are … not usually unlawful, at least not as price-fixing schemes, where the agreement on price is necessary to market the product at all”). * * * Because the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under §1 of the Sherman Act, respondents’ antitrust claim cannot prevail. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Justice Alito took no part in the consideration or decision of these cases. Footnote 1 We presume for purposes of these cases that Equilon is a lawful joint venture. Its formation has been approved by federal and state regulators, and there is no contention here that it is a sham. As the court below noted: “There is a voluminous record documenting the economic justifications for creating the joint ventures. [T]he defendants concluded that numerous synergies and cost efficiencies would result” by creating Equilon as well as a parallel venture, Motiva Enterprises, in the eastern United States, and “that nationwide there would be up to $800 million in cost savings annually.” 369 F. 3d 1108, 1111 (CA9 2004). Had respondents challenged Equilon itself, they would have been required to show that its creation was anticompetitive under the rule of reason. See Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984). Footnote 2 Respondents have not put forth a rule of reason claim. 369 F. 3d, at 1113. Accordingly, we need not address petitioners’ alternative argument that §1 of the Sherman Act is inapplicable to joint ventures. Footnote 3 Respondents alternatively contend that petitioners should be held liable under the quick look doctrine. To be sure, we have applied the quick look doctrine to business activities that are so plainly anticompetitive that courts need undertake only a cursory examination before imposing antitrust liability. See California Dental Assn. v. FTC, 526 U. S. 756, 770 (1999). But for the same reasons that per se liability is unwarranted here, we conclude that petitioners cannot be held liable under the quick look doctrine.
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546.US.151
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Goodman, petitioner in No. 04–1236, is a paraplegic who sued respondent state defendants and others, challenging the conditions of his confinement in a Georgia prison under, inter alia, 42 U. S. C. §1983 and Title II of the Americans with Disability Act of 1990. As relevant here, the Federal District Court dismissed the §1983 claims because Goodman’s allegations were vague, and granted respondents summary judgment on the Title II money damages claims because they were barred by state sovereign immunity. The United States, petitioner in No. 04–1203, intervened on appeal. The Eleventh Circuit affirmed the District Court’s judgment as to the Title II claims, but reversed the §1983 ruling, finding that Goodman had alleged facts sufficient to support a limited number of Eighth Amendment claims against state agents and should be permitted to amend his complaint. This Court granted certiorari to decide the validity of Title II’s abrogation of state sovereign immunity. Held: Insofar as Title II creates a private cause of action for damages against States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. Pp. 5–8. (a) Because this Court assumes that the Eleventh Circuit correctly held that Goodman had alleged actual Eighth Amendment violations for purposes of §1983, and because respondents do not dispute Goodman’s claim that this same conduct violated Title II, Goodman’s Title II money damages claims were evidently based, at least in part, on conduct that independently violated §1 of the Fourteenth Amendment. No one doubts that §5 grants Congress the power to enforce the Fourteenth Amendment’s provisions by creating private remedies against the States for actual violations of those provisions. This includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. Thus, the Eleventh Circuit erred in dismissing those of Goodman’s claims based on conduct that violated the Fourteenth Amendment. Pp. 5–7. (b) Once Goodman’s complaint is amended, the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such conduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity in such contexts is nevertheless valid. Pp. 7–8. 120 Fed. Appx. 785, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Together with No. 04–1236, Goodman v. Georgia et al., also on certiorari to the same court.
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We consider whether a disabled inmate in a state prison may sue the State for money damages under Title II of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, as amended, 42 U. S. C. §12131 et seq. (2000 ed. and Supp. II). I A Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” §12132 (2000 ed.). A “ ‘qualified individual with a disability’ ” is defined as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” §12131(2). The Act defines “ ‘public entity’ ” to include “any State or local government” and “any department, agency, … or other instrumentality of a State,” §12131(1). We have previously held that this term includes state prisons. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 210 (1998). Title II authorizes suits by private citizens for money damages against public entities that violate §12132. See 42 U. S. C. §12133 (incorporating by reference 29 U. S. C. §794a). In enacting the ADA, Congress “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment … .” 42 U. S. C. §12101(b)(4). Moreover, the Act provides that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter.” §12202. We have accepted this latter statement as an unequivocal expression of Congress’s intent to abrogate state sovereign immunity. See Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 363–364 (2001). B Petitioner in No. 04–1236, Tony Goodman, is a paraplegic inmate in the Georgia prison system who, at all relevant times, was housed at the Georgia State Prison in Reidsville. After filing numerous administrative grievances in the state prison system, Goodman filed a pro se complaint in the United States District Court for the Southern District of Georgia challenging the conditions of his confinement. He named as defendants the State of Georgia and the Georgia Department of Corrections (state defendants) and several individual prison officials. He brought claims under Rev. Stat. §1979, 42 U. S. C. §1983, Title II of the ADA, and other provisions not relevant here, seeking both injunctive relief and money damages against all defendants. Goodman’s pro se complaint and subsequent filings in the District Court included many allegations, both grave and trivial, regarding the conditions of his confinement in the Reidsville prison. Among his more serious allegations, he claimed that he was confined for 23-to-24 hours per day in a 12-by-3-foot cell in which he could not turn his wheelchair around. He alleged that the lack of accessible facilities rendered him unable to use the toilet and shower without assistance, which was often denied. On multiple occasions, he asserted, he had injured himself in attempting to transfer from his wheelchair to the shower or toilet on his own, and, on several other occasions, he had been forced to sit in his own feces and urine while prison officials refused to assist him in cleaning up the waste. He also claimed that he had been denied physical therapy and medical treatment, and denied access to virtually all prison programs and services on account of his disability. The District Court adopted the Magistrate Judge’s recommendation that the allegations in the complaint were vague and constituted insufficient notice pleading as to Goodman’s §1983 claims. It therefore dismissed the §1983 claims against all defendants without providing Goodman an opportunity to amend his complaint. The District Court also dismissed his Title II claims against all individual defendants. Later, after our decision in Garrett, the District Court granted summary judgment to the state defendants on Goodman’s Title II claims for money damages, holding that those claims were barred by state sovereign immunity. Goodman appealed to the United States Court of Appeals for the Eleventh Circuit. The United States, petitioner in No. 04–1203, intervened to defend the constitutionality of Title II’s abrogation of state sovereign immunity. The Eleventh Circuit determined that the District Court had erred in dismissing all of Goodman’s §1983 claims, because Goodman’s multiple pro se filings in the District Court alleged facts sufficient to support “a limited number of Eighth-Amendment claims under §1983” against certain individual defendants. App. to Pet. for Cert. in No. 04–1236, p. 17a, judgt. order reported at 120 Fed. Appx. 785 (2004). The Court of Appeals held that the District Court should have given Goodman leave to amend his complaint to develop three Eighth Amendment claims relating to his conditions of confinement: “First, Goodman alleges that he is not able to move his wheelchair in his cell. If Goodman is to be believed, this effectively amounts to some form of total restraint twenty-three to twenty-four hours-a-day without penal justification. Second, Goodman has alleged several instances in which he was forced to sit in his own bodily waste because prison officials refused to provide assistance. Third, Goodman has alleged sufficient conduct to proceed with a §1983 claim based on the prison staff’s supposed ‘deliberate indifference’ to his serious medical condition of being partially paraplegic … .” App. to Pet. for Cert. in No. 04–1236, pp. 18a–19a (citation and footnote omitted). The Court remanded the suit to the District Court to permit Goodman to amend his complaint, while cautioning Goodman not to reassert all the §1983 claims included in his initial complaint, “some of which [we]re obviously frivolous.” Id., at 18a. The Eleventh Circuit did not address the sufficiency of Goodman’s allegations under Title II. Instead, relying on its prior decision in Miller v. King, 384 F. 3d 1248 (2004), the Court of Appeals affirmed the District Court’s holding that Goodman’s Title II claims for money damages against the State were barred by sovereign immunity. We granted certiorari to consider whether Title II of the ADA validly abrogates state sovereign immunity with respect to the claims at issue here. 544 U. S. ___ (2005). II In reversing the dismissal of Goodman’s §1983 claims, the Eleventh Circuit held that Goodman had alleged actual violations of the Eighth Amendment by state agents on the grounds set forth above. See App. to Pet. for Cert. in No. 04–1236, pp. 18a–19a. The State does not contest this holding, see Brief for Respondents 41–44, and we did not grant certiorari to consider the merits of Goodman’s Eighth Amendment claims; we assume without deciding, therefore, that the Eleventh Circuit’s treatment of these claims was correct. Moreover, Goodman urges, and the State does not dispute, that this same conduct that violated the Eighth Amendment also violated Title II of the ADA. See Brief for Petitioner in No. 04–1236, p. 46; Brief for Respondents 41–44. In fact, it is quite plausible that the alleged deliberate refusal of prison officials to accommodate Goodman’s disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted “exclu[sion] from participation in or … den[ial of] the benefits of” the prison’s “services, programs, or activities.” 42 U. S. C. §12132; see also Yeskey, 524 U. S., at 210 (noting that the phrase “services, programs, or activities” in §12132 includes recreational, medical, educational, and vocational prison programs). Therefore, Goodman’s claims for money damages against the State under Title II were evidently based, at least in large part, on conduct that independently violated the provisions of §1 of the Fourteenth Amendment. See Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (the Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment’s guarantee against cruel and unusual punishment). In this respect, Goodman differs from the claimants in our other cases addressing Congress’s ability to abrogate sovereign immunity pursuant to its §5 powers. See Tennessee v. Lane, 541 U. S. 509, 543, n. 4 (2004) (Rehnquist, C. J., dissenting) (respondents were not actually denied constitutional rights); Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 752, 755 (2003) (Kennedy, J., dissenting) (Nevada provided family leave “on a gender-neutral basis”—“a practice which no one contends suffers from a constitutional infirmity”); Garrett, 531 U. S., at 362, 367–368 (failure to make the special accommodations requested by disabled respondents was not unconstitutional); Kimel v. Florida Bd. of Regents, 528 U. S. 62, 69–70, 83–84 (2000) (most petitioners raised nonconstitutional disparate-impact challenges to the State’s age-related policies); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 643–644, and n. 9 (1999) (Florida satisfied due process by providing remedies for patent infringement by state actors); City of Boerne v. Flores, 521 U. S. 507, 512 (1997) (church building permit denied under neutral law of general applicability). While the Members of this Court have disagreed regarding the scope of Congress’s “prophylactic” enforcement powers under §5 of the Fourteenth Amendment, see, e.g., Lane, 541 U. S., at 513 (majority opinion of Stevens, J.); id., at 538 (Rehnquist, C. J., dissenting); id., at 554 (Scalia, J., dissenting), no one doubts that §5 grants Congress the power to “enforce … the provisions” of the Amendment by creating private remedies against the States for actual violations of those provisions. “Section 5 authorizes Congress to create a cause of action through which the citizen may vindicate his Fourteenth Amendment rights.” Id., at 559–560 (Scalia, J., dissenting) (citing the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13); see also Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976) (“In [§5] Congress is expressly granted authority to enforce … the substantive provisions of the Fourteenth Amendment” by providing actions for money damages against the States (emphasis added)); Ex parte Virginia, 100 U. S. 339, 346 (1880) (“The prohibitions of the Fourteenth Amendment are directed to the States … . It is these which Congress is empowered to enforce …”). This enforcement power includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. See Fitzpatrick, supra, at 456. Thus, insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. The Eleventh Circuit erred in dismissing those of Goodman’s Title II claims that were based on such unconstitutional conduct. From the many allegations in Goodman’s pro se complaint and his subsequent filings in the District Court, it is not clear precisely what conduct he intended to allege in support of his Title II claims. Because the Eleventh Circuit did not address the issue, it is likewise unclear to what extent the conduct underlying Goodman’s constitutional claims also violated Title II. Moreover, the Eleventh Circuit ordered that the suit be remanded to the District Court to permit Goodman to amend his complaint, but instructed him to revise his factual allegations to exclude his “frivolous” claims—some of which are quite far afield from actual constitutional violations (under either the Eighth Amendment or some other constitutional provision), or even from Title II violations. See, e.g., App. 50 (demanding a “steam table” for Goodman’s housing unit). It is therefore unclear whether Goodman’s amended complaint will assert Title II claims premised on conduct that does not independently violate the Fourteenth Amendment. Once Goodman’s complaint is amended, the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. * * * The judgment of the Eleventh Circuit is reversed, and the suit is remanded for further proceedings consistent with this opinion. It is so ordered.
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548.US.140
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Respondent hired attorney Low to represent him on a federal drug charge. The District Court denied Low’s application for admission pro hac vice on the ground that he had violated a professional conduct rule and then, with one exception, prevented respondent from meeting or consulting with Low throughout the trial. The jury found respondent guilty. Reversing, the Eighth Circuit held that the District Court erred in interpreting the disciplinary rule, that the court’s refusal to admit Low therefore violated respondent’s Sixth Amendment right to paid counsel of his choosing, and that this violation was not subject to harmless-error review. Held: A trial court’s erroneous deprivation of a criminal defendant’s choice of counsel entitles him to reversal of his conviction. Pp. 3–12. (a) In light of the Government’s concession of erroneous deprivation, the trial court’s error violated respondent’s Sixth Amendment right to counsel of choice. The Court rejects the Government’s contention that the violation is not “complete” unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668, 691–696—i.e., that his performance was deficient and the defendant was prejudiced by it—or the defendant can demonstrate that substitute counsel’s performance, while not deficient, was not as good as what his counsel of choice would have provided, creating a “reasonable probability that … the result … would have been different,” id., at 694. To support these propositions, the Government emphasizes that the right to counsel is accorded to ensure that the accused receive a fair trial, Mickens v. Taylor, 535 U. S. 162, 166, and asserts that a trial is not unfair unless a defendant has been prejudiced. The right to counsel of choice, however, commands not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. Cf. Crawford v. Washington, 541 U. S. 36, 61. That right was violated here; no additional showing of prejudice is required to make the violation “complete.” Pp. 3–7. (b) The Sixth Amendment violation is not subject to harmless-error analysis. Erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Sullivan v. Louisiana, 508 U. S. 275, 282. It “def[ies] analysis by ‘harmless error’ standards” because it “affec[ts] the framework within which the trial proceeds” and is not “simply an error in the trial process itself.” Arizona v. Fulminante, 499 U. S. 279, 309–310. Different attorneys will pursue different strategies with regard to myriad trial matters, and the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides to go to trial. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. This inquiry is not comparable to that required to show that a counsel’s deficient performance prejudiced a defendant. Pp. 8–11. (c) Nothing in the Court’s opinion casts any doubt or places any qualification upon its previous holdings limiting the right to counsel of choice and recognizing trial courts’ authority to establish criteria for admitting lawyers to argue before them. However broad a trial court’s discretion may be, this Court accepts the Government’s concession that the District Court erred. Pp. 11–12. 399 F. 3d 924, affirmed and remanded. Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy and Thomas, JJ., joined.
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We must decide whether a trial court’s erroneous deprivation of a criminal defendant’s choice of counsel entitles him to a reversal of his conviction. I Respondent Cuauhtemoc Gonzalez-Lopez was charged in the Eastern District of Missouri with conspiracy to distribute more than 100 kilograms of marijuana. His family hired attorney John Fahle to represent him. After the arraignment, respondent called a California attorney, Joseph Low, to discuss whether Low would represent him, either in addition to or instead of Fahle. Low flew from California to meet with respondent, who hired him. Some time later, Low and Fahle represented respondent at an evidentiary hearing before a Magistrate Judge. The Magistrate Judge accepted Low’s provisional entry of appearance and permitted Low to participate in the hearing on the condition that he immediately file a motion for admission pro hac vice. During the hearing, however, the Magistrate Judge revoked the provisional acceptance on the ground that, by passing notes to Fahle, Low had violated a court rule restricting the cross-examination of a witness to one counsel. The following week, respondent informed Fahle that he wanted Low to be his only attorney. Low then filed an application for admission pro hac vice. The District Court denied his application without comment. A month later, Low filed a second application, which the District Court again denied without explanation. Low’s appeal, in the form of an application for a writ of mandamus, was dismissed by the United States Court of Appeals for the Eighth Circuit. Fahle filed a motion to withdraw as counsel and for a show-cause hearing to consider sanctions against Low. Fahle asserted that, by contacting respondent while respondent was represented by Fahle, Low violated Mo. Rule of Professional Conduct 4–4.2 (1993), which prohibits a lawyer “[i]n representing a client” from “communicat[ing] about the subject of the representation with a party … represented by another lawyer” without that lawyer’s consent. Low filed a motion to strike Fahle’s motion. The District Court granted Fahle’s motion to withdraw and granted a continuance so that respondent could find new representation. Respondent retained a local attorney, Karl Dickhaus, for the trial. The District Court then denied Low’s motion to strike and, for the first time, explained that it had denied Low’s motions for admission pro hac vice primarily because, in a separate case before it, Low had violated Rule 4–4.2 by communicating with a represented party. The case proceeded to trial, and Dickhaus represented respondent. Low again moved for admission and was again denied. The Court also denied Dickhaus’s request to have Low at counsel table with him and ordered Low to sit in the audience and to have no contact with Dickhaus during the proceedings. To enforce the Court’s order, a United States Marshal sat between Low and Dickhaus at trial. Respondent was unable to meet with Low throughout the trial, except for once on the last night. The jury found respondent guilty. After trial, the District Court granted Fahle’s motion for sanctions against Low. It read Rule 4–4.2 to forbid Low’s contact with respondent without Fahle’s permission. It also reiterated that it had denied Low’s motions for admission on the ground that Low had violated the same Rule in a separate matter. Respondent appealed, and the Eighth Circuit vacated the conviction. 399 F. 3d 924 (2005). The Court first held that the District Court erred in interpreting Rule 4–4.2 to prohibit Low’s conduct both in this case and in the separate matter on which the District Court based its denials of his admission motions. The District Court’s denials of these motions were therefore erroneous and violated respondent’s Sixth Amendment right to paid counsel of his choosing. See id., at 928–932. The Court then concluded that this Sixth Amendment violation was not subject to harmless-error review. See id., at 932–935. We granted certiorari. 546 U. S. ___ (2006). II The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v. United States, 486 U. S. 153, 159 (1988). Cf. Powell v. Alabama, 287 U. S. 45, 53 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”). The Government here agrees, as it has previously, that “the Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624–625 (1989). To be sure, the right to counsel of choice “is circumscribed in several important respects.” Wheat, supra, at 159. But the Government does not dispute the Eighth Circuit’s conclusion in this case that the District Court erroneously deprived respondent of his counsel of choice. The Government contends, however, that the Sixth Amendment violation is not “complete” unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668, 691–696 (1984)—i.e., that substitute counsel’s performance was deficient and the defendant was prejudiced by it. In the alternative, the Government contends that the defendant must at least demonstrate that his counsel of choice would have pursued a different strategy that would have created a “reasonable probability that … the result of the proceedings would have been different,” id., at 694—in other words, that he was prejudiced within the meaning of Strickland by the denial of his counsel of choice even if substitute counsel’s performance was not constitutionally deficient.[Footnote 1] To support these propositions, the Government points to our prior cases, which note that the right to counsel “has been accorded … not for its own sake, but for the effect it has on the ability of the accused to receive a fair trial.” Mickens v. Taylor, 535 U. S. 162, 166 (2002) (internal quotation marks omitted). A trial is not unfair and thus the Sixth Amendment is not violated, the Government reasons, unless a defendant has been prejudiced. Stated as broadly as this, the Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment’s right of confrontation—a line of reasoning that “abstracts from the right to its purposes, and then eliminates the right.” Maryland v. Craig, 497 U. S. 836, 862 (1990) (Scalia, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore “indicia of reliability,” the Confrontation Clause was not violated. See Roberts, supra, at 65–66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id., at 61. So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.” Strickland, supra, at 684–685. In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation “complete.”[Footnote 2] The cases the Government relies on involve the right to the effective assistance of counsel, the violation of which generally requires a defendant to establish prejudice. See, e.g., Strickland, supra, at 694; Mickens, supra, at 166; United States v. Cronic, 466 U. S. 648 (1984). The earliest case generally cited for the proposition that “the right to counsel is the right to the effective assistance of counsel,” McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970), was based on the Due Process Clause rather than on the Sixth Amendment, see Powell, 287 U. S., at 57 (cited in e.g., McMann, supra, at 771, n. 14). And even our recognition of the right to effective counsel within the Sixth Amendment was a consequence of our perception that representation by counsel “is critical to the ability of the adversarial system to produce just results.” Strickland, supra, at 685. Having derived the right to effective representation from the purpose of ensuring a fair trial, we have, logically enough, also derived the limits of that right from that same purpose. See Mickens, supra, at 166. The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the right to counsel at issue there—effective (not mistake-free) representation. Counsel cannot be “ineffective” unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have). Thus, a violation of the Sixth Amendment right to effective representation is not “complete” until the defendant is prejudiced. See Strickland, supra, at 685. The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.[Footnote 3] It has been regarded as the root meaning of the constitutional guarantee. See Wheat, 486 U. S., at 159; Andersen v. Treat, 172 U. S. 24 (1898). See generally W. Beaney, The Right to Counsel in American Courts 18–24, 27–33 (1955). Cf. Powell, supra, at 53. Where the right to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed. III Having concluded, in light of the Government’s concession of erroneous deprivation, that the trial court violated respondent’s Sixth Amendment right to counsel of choice, we must consider whether this error is subject to review for harmlessness. In Arizona v. Fulminante, 499 U. S. 279 (1991), we divided constitutional errors into two classes. The first we called “trial error,” because the errors “occurred during presentation of the case to the jury” and their effect may “be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.” Id., at 307–308 (internal quotation marks omitted). These include “most constitutional errors.” Id., at 306. The second class of constitutional error we called “structural defects.” These “defy analysis by ‘harmless-error’ standards” because they “affec[t] the framework within which the trial proceeds,” and are not “simply an error in the trial process itself.” Id., at 309–310.[Footnote 4] See also Neder v. United States, 527 U. S. 1, 7–9 (1999). Such errors include the denial of counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963), the denial of the right of self-representation, see McKaskle v. Wiggins, 465 U. S. 168, 177–178, n. 8 (1984), the denial of the right to public trial, see Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984), and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction, see Sullivan v. Louisiana, 508 U. S. 275 (1993). We have little trouble concluding that erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Id., at 282. Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds,” Fulminante, supra, at 310—or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe. The Government acknowledges that the deprivation of choice of counsel pervades the entire trial, but points out that counsel’s ineffectiveness may also do so and yet we do not allow reversal of a conviction for that reason without a showing of prejudice. But the requirement of showing prejudice in ineffectiveness claims stems from the very definition of the right at issue; it is not a matter of showing that the violation was harmless, but of showing that a violation of the right to effective representation occurred. A choice-of-counsel violation occurs whenever the defendant’s choice is wrongfully denied. Moreover, if and when counsel’s ineffectiveness “pervades” a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how those mistakes affected the outcome. To determine the effect of wrongful denial of choice of counsel, however, we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel—in matters ranging from questions asked on voir dire and cross-examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently—or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a longstanding relationship of trust with the prosecutors. And then we would have to speculate upon what effect those different choices or different intangibles might have had. The difficulties of conducting the two assessments of prejudice are not remotely comparable.[Footnote 5] IV Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post, at 3, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626. Nor may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. See Wheat, 486 U. S., at 159–160. We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, id., at 163–164, and against the demands of its calendar, Morris v. Slappy, 461 U. S. 1, 11–12 (1983). The court has, moreover, an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, supra, at 160. None of these limitations on the right to choose one’s counsel is relevant here. This is not a case about a court’s power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel. However broad a court’s discretion may be, the Government has conceded that the District Court here erred when it denied respondent his choice of counsel. Accepting that premise, we hold that the error violated respondent’s Sixth Amendment right to counsel of choice and that this violation is not subject to harmless-error analysis. * * * The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The dissent proposes yet a third standard—viz., that the defendant must show “ ‘an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial.’ ” Post, at 4 (opinion of Alito, J.). That proposal suffers from the same infirmities (outlined later in text) that beset the Government’s positions. In addition, however, it greatly impairs the clarity of the law. How is a lower-court judge to know what an “identifiable difference” consists of? Whereas the Government at least appeals to Strickland and the case law under it, the most the dissent can claim by way of precedential support for its rule is that it is “consistent with” cases that never discussed the issue of prejudice. Id. Footnote 2 The dissent resists giving effect to our cases’ recognition, and the Government’s concession, that a defendant has a right to be defended by counsel of his choosing. It argues that because the Sixth Amendment guarantees the right to the “assistance of counsel,” it is not violated unless “the erroneous disqualification of a defendant’s counsel of choice … impair[s] the assistance that a defendant receives at trial.” Post, at 1–2 (opinion of Alito, J.). But if our cases (and the Government’s concession) mean anything, it is that the Sixth Amendment is violated when the erroneous disqualification of counsel “impair[s] the assistance that a defendant receives at trial [from the counsel that he chose].” Footnote 3 In Wheat v. United States, 486 U. S. 153 (1988), where we formulated the right to counsel of choice and discussed some of the limitations upon it, we took note of the overarching purpose of fair trial in holding that the trial court has discretion to disallow a first choice of counsel that would create serious risk of conflict of interest. Id., at 159. It is one thing to conclude that the right to counsel of choice may be limited by the need for fair trial, but quite another to say that the right does not exist unless its denial renders the trial unfair. Footnote 4 The dissent criticizes us for our trial error/structural defect dichotomy, asserting that Fulminante never said that “trial errors are the only sorts of errors amenable to harmless-error review, or that all errors affecting the framework within which the trial proceeds are structural,” post, at 8 (opinion of Alito, J.) (internal quotation marks and citation omitted). Although it is hard to read that case as doing anything other than dividing constitutional error into two comprehensive categories, our ensuing analysis in fact relies neither upon such comprehensiveness nor upon trial error as the touchstone for the availability of harmless-error review. Rather, here, as we have done in the past, we rest our conclusion of structural error upon the difficulty of assessing the effect of the error. See Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984) (violation of the public-trial guarantee is not subject to harmlessness review because “the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance”); Vasquez v. Hillery, 474 U. S. 254, 263 (1986) (“[W]hen a petit jury has been selected upon improper criteria or has been exposed to prejudicial publicity, we have required reversal of the conviction because the effect of the violation cannot be ascertained”). The dissent would use “fundamental unfairness” as the sole criterion of structural error, and cites a case in which that was the determining factor, see Neder v. United States, 527 U. S. 1, 9 (1999) (quoted by the dissent, post, at 6). But this has not been the only criterion we have used. In addition to the above cases using difficulty of assessment as the test, we have also relied on the irrelevance of harmlessness, see McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8 (1984) (“Since the right to self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis”). Thus, it is the dissent that creates a single, inflexible criterion, inconsistent with the reasoning of our precedents, when it asserts that only those errors that always or necessarily render a trial fundamentally unfair and unreliable are structural, post, at 8. Footnote 5 In its discussion of the analysis that would be required to conduct harmless-error review, the dissent focuses on which counsel was “better.” See post, at 7–8 (opinion of Alito, J.). This focus has the effect of making the analysis look achievable, but it is fundamentally inconsistent with the principle (which the dissent purports to accept for the sake of argument) that the Sixth Amendment can be violated without a showing of harm to the quality of representation. Cf. McKaskle, supra, at 177, n. 8. By framing its inquiry in these terms and expressing indignation at the thought that a defendant may receive a new trial when his actual counsel was at least as effective as the one he wanted, the dissent betrays its misunderstanding of the nature of the right to counsel of choice and its confusion of this right with the right to effective assistance of counsel.
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547.US.90
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A Magistrate Judge issued an “anticipatory” search warrant for respondent Grubbs’ house based on a federal officer’s affidavit. The affidavit explained that the warrant would not be executed until a parcel containing a videotape of child pornography—which Grubbs had ordered from an undercover postal inspector—was received at, and physically taken into, the residence. The affidavit also referred to two attachments describing the residence and the items to be seized. After the package was delivered and the search commenced, Grubbs was given a copy of the warrant, which included the attachments but not the supporting affidavit. When he admitted ordering the videotape, he was arrested, and the videotape and other items were seized. Following his indictment for receiving child pornography, see 18 U. S. C. §2252(a)(2), Grubbs moved to suppress the seized evidence, arguing, inter alia, that the warrant was invalid because it failed to list the triggering condition. The District Court denied the motion, and Grubbs pleaded guilty. The Ninth Circuit reversed, concluding that the warrant ran afoul of the Fourth Amendment’s particularity requirement, which, under Circuit precedent, applied to the conditions precedent to an anticipatory warrant. Held: 1. Anticipatory warrants are not categorically unconstitutional under the Fourth Amendment’s provision that “no Warrants shall issue, but upon probable cause.” Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U. S. 213, 238. When an anticipatory warrant is issued, the fact that the contraband is not presently at the place described is immaterial, so long as there is probable cause to believe it will be there when the warrant is executed. Anticipatory warrants are, therefore, no different in principle from ordinary warrants: They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. Where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met, but also to the likelihood that the condition will be met, and thus that a proper object of seizure will be on the described premises. Here, the occurrence of the triggering condition—successful delivery of the videotape—would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied. Pp. 3–7. 2. The warrant at issue did not violate the Fourth Amendment’s particularity requirement. The Amendment specifies only two matters that the warrant must “particularly describ[e]”: “the place to be searched” and “the persons or things to be seized.” That language is decisive here; the particularity requirement does not include the conditions precedent to execution of the warrant. Cf. Dalia v. United States, 441 U. S. 238, 255, 257. Respondent’s two policy rationales—that setting forth the triggering condition in the warrant itself is necessary (1) to delineate the limits of the executing officer’s power and (2) to allow the individual whose property is searched or seized to police the officer’s conduct—find no basis in either the Fourth Amendment or Federal Rule of Criminal Procedure 41. Pp. 7–9. 377 F. 3d 1072 and 389 F. 3d 1306, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Breyer, JJ., joined, and in which Stevens, Souter, and Ginsburg, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens and Ginsburg, JJ., joined. Alito, J., took no part in the consideration or decision of the case.
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Federal law enforcement officers obtained a search warrant for respondent’s house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant. I Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs’ residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated: “Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence . . . . At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant’s command.” App. to Pet. for Cert. 72a. In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs’ residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded: “Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs’ residence], which residence is further described at Attachment A.” Ibid. The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector delivered the package. Grubbs’ wife signed for it and took the unopened package inside. The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and various items were seized, including the videotape. A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See 18 U. S. C. §2252(a)(2). He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress. The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). Relying on Circuit precedent, it held that “the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077–1078 (citing United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason may be “cur[ed]” if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and “presented to the person whose property is being searched.” 377 F. 3d, at 1079. Because the postal inspectors “failed to present the affidavit—the only document in which the triggering conditions were listed”—to Grubbs or his wife, the “warrant was … inoperative, and the search was illegal.” Ibid. We granted certiorari. 545 U. S. ___ (2005). II Before turning to the Ninth Circuit’s conclusion that the warrant at issue here ran afoul of the Fourth Amendment’s particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional.[Footnote 1] An anticipatory warrant is “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 2 W. LaFave, Search and Seizure §3.7(c), p. 398 (4th ed. 2004). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time—a so-called “triggering condition.” The affidavit at issue here, for instance, explained that “[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence.” App. to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth Amendment’s provision that “no Warrants shall issue, but upon probable cause.” We reject this view, as has every Court of Appeals to confront the issue, see, e.g., United States v. Loy, 191 F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U. S. 213, 238 (1983). Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, “anticipatory.” In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 (1972) (“[P]resent possession is only probative of the likelihood of future possession.”).[Footnote 2] The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e.g., Katz v. United States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing “interception of wire, oral, or electronic communications” to determine that “there is probable cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception.” 18 U. S. C. §2518(3)(b) (emphasis added); see also United States v. Ricciardelli, 998 F. 2d 8, 11, n. 3 (CA1 1993) (“[T]he magistrate issues the warrant on the basis of a substantial probability that crime-related conversations will ensue.”). Thus, when an anticipatory warrant is issued, “the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.” United States v. Garcia, 882 F. 2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F. 2d 1193, 1194 (CA6 1978); internal quotation marks omitted). Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered—though for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” Gates, supra, at 238, but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, supra, at 703. In this case, the occurrence of the triggering condition—successful delivery of the videotape to Grubbs’ residence—would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore “had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Gates, 462 U. S., at 238–239 (quoting Jones v. United States, 362 U. S. 257, 271 (1960)). III The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment’s particularity requirement, it held, “applies with full force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077–1078. The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a “bug” installed by the police in the petitioner’s office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must “explicitly set forth its approval of such entries before the fact.” Id., at 255. This argument fell before the “ ‘precise and clear’ ” words of the Fourth Amendment: “Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed.” Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant. Respondent, drawing upon the Ninth Circuit’s analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary “to delineate the limits of the executing officer’s power.” Brief for Respondent 20. This is an application, respondent asserts, of the following principle: “[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant.” Id., at 23. That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate’s basis for finding probable cause, even though probable cause is the quintessential “precondition to the valid exercise of executive power.” Much less does it require description of a triggering condition. Second, respondent argues that listing the triggering condition in the warrant is necessary to “ ‘assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’ ” Id., at 19 (quoting United States v. Chadwick, 433 U. S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he “would ‘stand [no] real chance of policing the officers’ conduct.’ ” 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search. See 377 F. 3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5 (2004). “The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is … evidence that the requirement of particular description does not protect an interest in monitoring searches.” United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999) (citations omitted). The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer . . . between the citizen and the police.” Wong Sun v. United States, 371 U. S. 471, 481–482 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages. * * * Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 This issue is “predicate to an intelligent resolution of the question presented.” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation marks omitted). It makes little sense to address what the Fourth Amendment requires of anticipatory search warrants if it does not allow them at all. Cf. Wilkinson v. Austin, 545 U. S. ___, ___ (2005) (slip op., at 9) (addressing whether inmates had a liberty interest in avoiding assignment to a “Supermax” prison, despite the State’s concession that they did, because “[w]e need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest”). Footnote 2 For this reason, probable cause may cease to exist after a warrant is issued. The police may learn, for instance, that contraband is no longer located at the place to be searched. See, e.g., United States v. Bowling, 900 F. 2d 926, 932 (CA6 1990) (recognizing that a fruitless consent search could “dissipat[e] the probable cause that justified a warrant”). Or the probable-cause showing may have grown “stale” in view of the time that has passed since the warrant was issued. See United States v. Wagner, 989 F. 2d 69, 75 (CA2 1993) (“[T]he facts in an affidavit supporting a search warrant must be sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search and not simply as of some time in the past.”); see also Sgro v. United States, 287 U. S. 206, 210–211 (1932).
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546.US.43
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Claiming that federal mine inspectors’ negligence helped cause a mine accident, two injured workers (and a spouse) sued the United States under the Federal Tort Claims Act (FTCA or Act), which authorizes private tort actions against the Government “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred,” 28 U. S. C. §1346(b)(1). The District Court dismissed in part on the ground that the allegations did not show that Arizona law would impose liability upon a private person in similar circumstances. The Ninth Circuit reversed, reasoning from two premises: (1) Where unique governmental functions are at issue, the Act waives sovereign immunity if a state or municipal entity would be held liable under the law where the activity occurred, and (2) federal mine inspections are such unique governmental functions since there is no private-sector analogue for mine inspections. Because Arizona law would make a state or municipal entity liable in the circumstances alleged, the Circuit concluded that the United States’ sovereign immunity was waived. Held: Under §1346(b)(1), the United States waives sovereign immunity only where local law would make a “private person” liable in tort, not where local law would make “a state or municipal entity” liable. Pp. 2–5. (a) The Ninth Circuit’s first premise is too broad, reading into the Act something that is not there. Section 1346(b)(1) says that it waives sovereign immunity “under circumstances where the United States, if a private person,” not “the United States, if a state or municipal entity,” would be liable. (Emphasis added.) This Court has consistently adhered to this “private person” standard, even when uniquely governmental functions are at issue. Indian Towing Co. v. United States, 350 U. S. 61, 64; Rayonier Inc. v. United States, 352 U. S. 315, 318. Even though both these cases involved Government efforts to escape liability by pointing to the absence of municipal entity liability, there is no reason for treating differently a plaintiff’s effort to base liability solely upon the fact that a State would impose liability upon a state governmental entity. Nothing in the Act’s context, history, or objectives or in this Court’s opinions suggests otherwise. Pp. 2–3. (b) The Ninth Circuit’s second premise reads the Act too narrowly. Section 2674 makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” (Emphasis added.) The words “like circumstances” do not restrict a court's inquiry to the same circumstances, but require it to look further afield. See, e.g., Indian Towing, supra, at 64. The Government in effect concedes, and other Courts of Appeals’ decisions applying Indian Towing’s logic suggest, that private person analogies exist for the federal mine inspectors’ conduct at issue. The Ninth Circuit should have looked for a such an analogy. Pp. 3–4. (c) The lower courts should decide in the first instance precisely which Arizona tort law doctrine applies here. P. 5. 362 F. 3d 1236, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.
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The Federal Tort Claims Act (FTCA or Act) authorizes private tort actions against the United States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. §1346(b)(1). We here interpret these words to mean what they say, namely, that the United States waives sovereign immunity “under circumstances” where local law would make a “private person” liable in tort. (Emphasis added.) And we reverse a line of Ninth Circuit precedent permitting courts in certain circumstances to base a waiver simply upon a finding that local law would make a “state or municipal entit[y]” liable. See, e.g., Hines v. United States, 60 F. 3d 1442, 1448 (1995); Cimo v. INS, 16 F. 3d 1039, 1041 (1994); Cameron v. Janssen Bros. Nurseries, Ltd., 7 F. 3d 821, 825 (1993); Aguilar v. United States, 920 F. 2d 1475, 1477 (1990); Doggett v. United States, 875 F. 2d 684, 689 (1988). I In this case, two injured mine workers (and a spouse) have sued the United States claiming that the negligence of federal mine inspectors helped bring about a serious accident at an Arizona mine. The Federal District Court dismissed the lawsuit in part upon the ground that their allegations were insufficient to show that Arizona law would impose liability upon a private person in similar circumstances. The Ninth Circuit, in a brief per curiam opinion, reversed this determination. It reasoned from two premises. First, where “ ‘unique governmental functions’ ” are at issue, the Act waives sovereign immunity if “ ‘a state or municipal entity would be [subject to liability] under the law […] where the activity occurred.’ ” 362 F. 3d 1236, 1240 (2004) (citing Hines, supra, at 1448, and quoting Doggett, supra, at 689, and Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F. 3d 1368, 1371 (CA9 1997)). Second, federal mine inspections being regulatory in nature are such “ ‘unique governmental functions,’ ” since “there is no private-sector analogue for mine inspections.” 362 F. 3d, at 1240 (quoting in part Doggett, supra, at 689). The Circuit then held that Arizona law would make “state or municipal entities” liable in the circumstances alleged; hence the FTCA waives the United States’ sovereign immunity. 362 F. 3d, at 1240. II We disagree with both of the Ninth Circuit's legal premises. A The first premise is too broad, for it reads into the Act something that is not there. The Act says that it waives sovereign immunity “under circumstances where the United States, if a private person,” not “the United States, if a state or municipal entity,” would be liable. 28 U. S. C. §1346(b)(1) (emphasis added). Our cases have consistently adhered to this “private person” standard. In Indian Towing Co. v. United States, 350 U. S. 61, 64 (1955), this Court rejected the Government’s contention that there was “no liability for negligent performance of ‘uniquely governmental functions.’ ” It held that the Act requires a court to look to the state-law liability of private entities, not to that of public entities, when assessing the Government’s liability under the FTCA “in the performance of activities which private persons do not perform.” Ibid. In Rayonier Inc. v. United States, 352 U. S. 315, 318–319 (1957), the Court rejected a claim that the scope of FTCA liability for “ ‘uniquely governmental’ ” functions depends on whether state law “imposes liability on municipal or other local governments for the negligence of their agents acting in” similar circumstances. And even though both these cases involved Government efforts to escape liability by pointing to the absence of municipal entity liability, we are unaware of any reason for treating differently a plaintiff’s effort to base liability solely upon the fact that a State would impose liability upon a municipal (or other state governmental) entity. Indeed, we have found nothing in the Act’s context, history, or objectives or in the opinions of this Court suggesting a waiver of sovereign immunity solely upon that basis. B The Ninth Circuit’s second premise rests upon a reading of the Act that is too narrow. The Act makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U. S. C. §2674 (emphasis added). As this Court said in Indian Towing, the words “ ‘like circumstances’ ” do not restrict a court's inquiry to the same circumstances, but require it to look further afield. 350 U. S., at 64; see also S. Rep. No. 1400, 79th Cong., 2d Sess., 32 (1946) (purpose of FTCA was to make the tort liability of the United States “the same as that of a private person under like circumstance, in accordance with the local law”). The Court there considered a claim that the Coast Guard, responsible for operating a lighthouse, had failed “to check” the light’s “battery and sun relay system,” had failed “to make a proper examination” of outside “connections,” had “fail[ed] to check the light” on a regular basis, and had failed to “repair the light or give warning that the light was not operating.” Indian Towing, 350 U. S., at 62. These allegations, the Court held, were analogous to allegations of negligence by a private person “who undertakes to warn the public of danger and thereby induces reliance.” Id., at 64–65. It is “hornbook tort law,” the Court added, that such a person “must perform his ‘good Samaritan’ task in a careful manner.” Ibid. The Government in effect concedes that similar “good Samaritan” analogies exist for the conduct at issue here. It says that “there are private persons in ‘like circumstances’ ” to federal mine inspectors, namely “private persons who conduct safety inspections.” Reply Brief for United States 3. And other Courts of Appeals have found ready private person analogies for Government tasks of this kind in FTCA cases. E.g., Dorking Genetics v. United States, 76 F. 3d 1261 (CA2 1996) (inspection of cattle); Florida Auto Auction of Orlando, Inc. v. United States, 74 F. 3d 498 (CA4 1996) (inspection of automobile titles); Ayala v. United States, 49 F. 3d 607 (CA10 1995) (mine inspections); Myers v. United States, 17 F. 3d 890 (CA6 1994) (same); Howell v. United States, 932 F. 2d 915 (CA11 1991) (inspection of airplanes). These cases all properly apply the logic of Indian Towing. Private individuals, who do not operate lighthouses, nonetheless may create a relationship with third parties that is similar to the relationship between a lighthouse operator and a ship dependent on the lighthouse’s beacon. Indian Towing, supra, at 64–65, 69. The Ninth Circuit should have looked for a similar analogy in this case. III Despite the Government's concession that a private person analogy exists in this case, the parties disagree about precisely which Arizona tort law doctrine applies here. We remand the case so that the lower courts can decide this matter in the first instance. The judgment of the Ninth Circuit is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
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546.US.394
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After respondent ConAgra warned companies selling equipment and processes for browning precooked meats that it intended to protect its rights under its patent for that process, petitioner Unitherm, whose president had invented the process six years before ConAgra filed its patent application, and one of ConAgra’s direct competitors jointly filed suit in an Oklahoma federal court. As relevant here, they sought a declaration that ConAgra’s patent was invalid and unenforceable and alleged that ConAgra had violated §2 of the Sherman Act by attempting to enforce a patent obtained by fraud on the Patent and Trademark Office, see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 174. The District Court found the patent invalid and allowed the Walker Process claim to proceed to trial. Before the case was submitted to the jury, ConAgra moved for a directed verdict under Federal Rule of Civil Procedure 50(a) based on legal insufficiency of the evidence. The court denied the motion, the jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b) nor moved for a new trial on antitrust liability pursuant to Rule 59. On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the Walker Process verdict. The court applied Tenth Circuit law, under which a party that has failed to file a postverdict sufficiency of the evidence challenge may nonetheless raise such a claim on appeal, so long as the party filed a Rule 50(a) motion before submission of the case to the jury. The only available relief in such a circumstance is a new trial. Freed to examine the sufficiency of the evidence, the Federal Circuit vacated the judgment and ordered a new trial. Held: Since respondent failed to renew its preverdict motion as specified in Rule 50(b), the Federal Circuit had no basis for reviewing respondent’s sufficiency of the evidence challenge. Rule 50 sets forth the requirements, establishing two stages, for challenging the sufficiency of the evidence in a civil jury trial. Rule 50(a) allows a challenge prior to the case’s submission to the jury, authorizing the district court to grant the motion at the court’s discretion. Rule 50(b), by contrast, sets forth the requirements for renewing the challenge after the jury verdict and entry of judgment. A party’s failure to file a Rule 50(b) postverdict motion deprives an appellate court of the “power to direct the District Court to enter judgment contrary to the one it had permitted to stand.” Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218. It also deprives an appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury’s verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571, and where the district court expressly reserved a party’s preverdict directed verdict motion and then denied it after the verdict, Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48. A postverdict motion is necessary because determining “whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.” Cone, supra, at 216. Moreover, the requirement “is not an idle motion” but “an essential part of the rule, firmly grounded in principles of fairness.” Johnson, supra, at 53. These authorities require reversal of the judgment below. This Court’s observations about the postverdict motion’s necessity and the benefits of the district court’s input at that stage apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. Contrary to respondent’s argument, the Cone, Globe Liquor, and Johnson outcomes underscore this holding. Those litigants all secured new trials, but they had moved for a new trial postverdict in the district court and did not seek to establish their entitlement to a new trial based solely on a denied Rule 50(a) motion. This result is further validated by the purported basis of respondent’s appeal, namely the District Court’s denial of its Rule 50(a) motion. Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party’s Rule 50(a) motion cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Respondent, rather than seeking to appeal the claim raised in its Rule 50(a) motion, seeks a new trial based on legal insufficiency of the evidence. If a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief sought in its Rule 50(a) motion, then surely respondent is foreclosed from seeking relief it did not and could not seek in its preverdict motion. Rule 50(b)’s text confirms that respondent’s Rule 50(a) motion did not give the District Court the option of ordering a new trial, for it provides that a district court may only order a new trial based on issues raised in a Rule 50(a) motion when “ruling on a renewed motion” under Rule 50(b). If the District Court lacked such power, then the Court of Appeals was similarly powerless. Rule 50(a)’s text and application also support this result. A district court may enter judgment as a matter of law when it concludes that the evidence is legally insufficient, but it is not required to do so. Thus, the denial of respondent’s Rule 50(a) motion was not error, but merely an exercise of the District Court’s discretion. Pp. 4–12. 375 F. 3d 1341, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and O’Connor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined.
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Ordinarily, a party in a civil jury trial that believes the evidence is legally insufficient to support an adverse jury verdict will seek a judgment as a matter of law by filing a motion pursuant to Federal Rule of Civil Procedure 50(a) before submission of the case to the jury, and then (if the Rule 50(a) motion is not granted and the jury subsequently decides against that party) a motion pursuant to Rule 50(b). In this case, however, the respondent filed a Rule 50(a) motion before the verdict, but did not file a Rule 50(b) motion after the verdict. Nor did respondent request a new trial under Rule 59. The Court of Appeals nevertheless proceeded to review the sufficiency of the evidence and, upon a finding that the evidence was insufficient, remanded the case for a new trial. Because our cases addressing the requirements of Rule 50 compel a contrary result, we reverse. I The genesis of the underlying litigation in this case was ConAgra’s attempt to enforce its patent for “A Method for Browning Precooked Whole Muscle Meat Products,” U. S. Patent No. 5,952,027 (’027 patent). In early 2000, ConAgra issued a general warning to companies who sold equipment and processes for browning precooked meats explaining that it intended to “ ‘aggressively protect all of [its] rights under [the ’027] patent.’ ” 375 F. 3d 1341, 1344 (CA Fed. 2004). Petitioner Unitherm sold such processes, but did not receive ConAgra’s warning. ConAgra also contacted its direct competitors in the precooked meat business, announcing that it was “ ‘making the ’027 Patent and corresponding patents that may issue available for license at a royalty rate of 10˘ per pound.’ ” Id., at 1345. Jennie-O, a direct competitor, received ConAgra’s correspondence and undertook an investigation to determine its rights and responsibilities with regard to the ’027 patent. Jennie-O determined that the browning process it had purchased from Unitherm was the same as the process described in the ’027 patent. Jennie-O further determined that the ’027 patent was invalid because Unitherm’s president had invented the process described in that patent six years before ConAgra filed its patent application. Consistent with these determinations, Jennie-O and Unitherm jointly sued ConAgra in the Western District of Oklahoma. As relevant here, Jennie-O and Unitherm sought a declaration that the ’027 patent was invalid and unenforceable, and alleged that ConAgra had violated §2 of the Sherman Act, 15 U. S. C. §2, by attempting to enforce a patent that was obtained by committing fraud on the Patent and Trademark Office (PTO). See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 174 (1965) (holding that “the enforcement of a patent procured by fraud on the Patent Office may be violative of §2 of the Sherman Act provided the other elements necessary to a §2 case are present”). The District Court construed the ’027 patent and determined that it was invalid based on Unitherm’s prior public use and sale of the process described therein. 35 U. S. C. §102(b). After dismissing Jennie-O for lack of antitrust standing, the District Court allowed Unitherm’s Walker Process claim to proceed to trial. Prior to the court’s submission of the case to the jury, ConAgra moved for a directed verdict under Rule 50(a) based on legal insufficiency of the evidence. The District Court denied that motion.[Footnote 1] The jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b), nor moved for a new trial on antitrust liability pursuant to Rule 59.[Footnote 2] On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the jury’s Walker Process verdict. Although the Federal Circuit has concluded that a party’s “failure to present the district court with a post-verdict motion precludes appellate review of sufficiency of the evidence,” Biodex Corp. v. Loredan Biomedical, Inc., 946 F. 2d 850, 862 (1991), in the instant case it was bound to apply the law of the Tenth Circuit. 375 F. 3d, at 1365, n. 7 (“On most issues related to Rule 50 motions … we generally apply regional circuit law unless the precise issue being appealed pertains uniquely to patent law”). Under Tenth Circuit law, a party that has failed to file a postverdict motion challenging the sufficiency of the evidence may nonetheless raise such a claim on appeal, so long as that party filed a Rule 50(a) motion prior to submission of the case to the jury. Cummings v. General Motors Corp., 365 F. 3d 944, 950–951 (2004). Notably, the only available relief in such a circumstance is a new trial. Id., at 951. Freed to examine the sufficiency of the evidence, the Federal Circuit concluded that, although Unitherm had presented sufficient evidence to support a determination that ConAgra had attempted to enforce a patent that it had obtained through fraud on the PTO, 375 F. 3d, at 1362, Unitherm had failed to present evidence sufficient to support the remaining elements of its antitrust claim. Id., at 1365 (“Unitherm failed to present any economic evidence capable of sustaining its asserted relevant antitrust market, and little to support any other aspect of its Section 2 claim”). Accordingly, it vacated the jury’s judgment in favor of Unitherm and remanded for a new trial. We granted certiorari, 543 U. S. 1186 (2005), and now reverse. II Federal Rule of Civil Procedure 50 sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges—prior to submission of the case to the jury, and after the verdict and entry of judgment. Rule 50(a) allows a party to challenge the sufficiency of the evidence prior to submission of the case to the jury, and authorizes the District Court to grant such motions at the court’s discretion: “(a) Judgment as a Matter of Law. “(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. “(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.” Rule 50(b), by contrast, sets forth the procedural requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment. “(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment—and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: “(1) if a verdict was returned: “(A) allow the judgment to stand, “(B) order a new trial, or “(C) direct entry of judgment as a matter of law … .” This Court has addressed the implications of a party’s failure to file a postverdict motion under Rule 50(b) on several occasions and in a variety of procedural contexts. This Court has concluded that, “[i]n the absence of such a motion” an “appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.” Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218 (1947). This Court has similarly concluded that a party’s failure to file a Rule 50(b) motion deprives the appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury’s verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), and where the district court expressly reserved a party’s preverdict motion for a directed verdict and then denied that motion after the verdict was returned. Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48 (1952). A postverdict motion is necessary because “[d]etermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.”[Footnote 3] Cone, supra, at 216. Moreover, the “requirement of a timely application for judgment after verdict is not an idle motion” because it “is … an essential part of the rule, firmly grounded in principles of fairness.” Johnson, supra, at 53. The foregoing authorities lead us to reverse the judgment below. Respondent correctly points out that these authorities address whether an appellate court may enter judgment in the absence of a postverdict motion, as opposed to whether an appellate court may order a new trial (as the Federal Circuit did here). But this distinction is immaterial. This Court’s observations about the necessity of a postverdict motion under Rule 50(b), and the benefits of the district court’s input at that stage, apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. In Cone, this Court concluded that, because Rule 50(b) permits the district court to exercise its discretion to choose between ordering a new trial and entering judgment, its “appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted.” 330 U. S., at 216 (emphasis added). Similarly, this Court has determined that a party may only pursue on appeal a particular avenue of relief available under Rule 50(b), namely the entry of judgment or a new trial, when that party has complied with the Rule’s filing requirements by requesting that particular relief below. See Johnson, supra, at 54 (“Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgment n. o. v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor”).[Footnote 4] Despite the straightforward language employed in Cone, Globe Liquor, and Johnson, respondent maintains that those cases dictate affirmance here, because in each of those cases the litigants secured a new trial. But in each of those cases the appellants moved for a new trial postverdict in the District Court, and did not seek to establish their entitlement to a new trial solely on the basis of a denied Rule 50(a) motion. See Cone, supra, at 213 (noting that respondent moved for a new trial);[Footnote 5] Globe Liquor, 332 U. S., at 572 (“The respondents … moved for a new trial on the ground … that there were many contested issues of fact”). Indeed, Johnson concluded that respondent was only entitled to a new trial by virtue of its motion for such “within the time required by Rule 50(b).” 344 U. S., at 54. Accordingly, these outcomes merely underscore our holding today—a party is not entitled to pursue a new trial on appeal unless that party makes an appropriate postverdict motion in the district court. Our determination that respondent’s failure to comply with Rule 50(b) forecloses its challenge to the sufficiency of the evidence is further validated by the purported basis of respondent’s appeal, namely the District Court’s denial of respondent’s preverdict Rule 50(a) motion. As an initial matter, Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party’s Rule 50(a) motion—namely, its entitlement to judgment as a matter of law—cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Here, respondent does not seek to pursue on appeal the precise claim it raised in its Rule 50(a) motion before the District Court—namely, its entitlement to judgment as a matter of law. Rather, it seeks a new trial based on the legal insufficiency of the evidence. But if, as in Cone, Globe Liquor, and Johnson, a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief it sought in its Rule 50(a) motion—i.e., the entry of judgment—then surely respondent is foreclosed from seeking a new trial, relief it did not and could not seek in its preverdict motion. In short, respondent never sought a new trial before the District Court, and thus forfeited its right to do so on appeal. Yakus v. United States, 321 U. S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than that a … right may be forfeited … by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it”). The text of Rule 50(b) confirms that respondent’s preverdict Rule 50(a) motion did not present the District Court with the option of ordering a new trial. That text provides that a district court may only order a new trial on the basis of issues raised in a preverdict Rule 50(a) motion when “ruling on a renewed motion” under Rule 50(b). Accordingly, even if the District Court was inclined to grant a new trial on the basis of arguments raised in respondent’s preverdict motion, it was without the power to do so under Rule 50(b) absent a postverdict motion pursuant to that Rule. Consequently, the Court of Appeals was similarly powerless. Similarly, the text and application of Rule 50(a) support our determination that respondent may not challenge the sufficiency of the evidence on appeal on the basis of the District Court’s denial of its Rule 50(a) motion. The Rule provides that “the court may determine” that “there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [a given] issue,” and “may grant a motion for judgment as a matter of law against that party … .” (Emphasis added.) Thus, while a district court is permitted to enter judgment as a matter of law when it concludes that the evidence is legally insufficient, it is not required to do so. To the contrary, the district courts are, if anything, encouraged to submit the case to the jury, rather than granting such motions. As Wright and Miller explain: “Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court’s appraisal of the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in is appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion.” 9A Federal Practice §2533, at 319 (footnote omitted). Thus, the District Court’s denial of respondent’s preverdict motion cannot form the basis of respondent’s appeal, because the denial of that motion was not error. It was merely an exercise of the District Court’s discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel’s failure to file a postverdict motion pursuant to Rule 50(b).[Footnote 6] * * * For the foregoing reasons, we hold that since respondent failed to renew its preverdict motion as specified in Rule 50(b), there was no basis for review of respondent’s sufficiency of the evidence challenge in the Court of Appeals. The judgment of the Court of Appeals is reversed.[Footnote 7] It is so ordered. Footnote 1 Petitioner contends that respondent’s Rule 50(a) motion pertained only to the fraud element of petitioner’s Walker Process claim, and that it did not encompass the remaining antitrust elements of that claim. Because we conclude that petitioner is entitled to prevail irrespective of the scope of respondent’s Rule 50(a) motion, we assume without deciding that that motion pertained to all aspects of petitioner’s §2 claim. But see Amendments to Federal Rules of Civil Procedure, 134 F. R. D. 525, 687 (1991) (“A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion”). Footnote 2 While ConAgra did file a postverdict motion seeking a new trial on antitrust damages, that motion did not seek to challenge the sufficiency of the evidence establishing antitrust liability and thus has no bearing on the instant case. Footnote 3 Neither Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 (1967), nor Weisgram v. Marley Co., 528 U. S. 440 (2000), undermine our judgment about the benefit of postverdict input from the district court. In those cases this Court determined that an appellate court may, in certain circumstances, direct the entry of judgment when it reverses the district court’s denial of a Rule 50(b) motion. But in such circumstances the district court will have had an opportunity to consider the propriety of entering judgment or ordering a new trial by virtue of the postverdict motion. Moreover, these cases reiterate the value of the district court’s input, cautioning the courts of appeals to be “ ‘constantly alert’ to ‘the trial judge’s first-hand knowledge of witnesses, testimony, and issues.’ ” Id., at 443 (quoting Neely, supra, at 325). Footnote 4 The dissent’s suggestion that 28 U. S. C. §2106 permits the Courts of Appeals to consider the sufficiency of the evidence underlying a civil jury verdict notwithstanding a party’s failure to comply with Rule 50 is foreclosed by authority of this Court. While the dissent observes that §2106 was enacted after Cone and Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), post, at 2 (opinion of Stevens, J.), it fails to note that it was enacted prior to Johnson. Johnson explicitly reaffirmed those earlier cases, concluding that “in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict [Rule 50] forbids the trial judge or an appellate court to enter such judgment.” 344 U. S., at 50. Moreover, in Neely, this Court observed that §2106 is “broad enough to include the power to direct entry of judgment n. o. v. on appeal,” 386 U. S., at 322, but nonetheless reaffirmed that Cone, Globe Liquor, and Johnson “make it clear that an appellate court may not order judgment n. o. v. where the verdict loser has failed to strictly comply with the procedural requirements of Rule 50(b).” 386 U. S., at 325. Contrary to the dissent’s suggestion, Neely confirms that the broad grant of authority to the Courts of Appeals in §2106 must be exercised consistent with the requirements of the Federal Rules of Civil Procedure as interpreted by this Court. The dissent’s approach is not only foreclosed by authority of this Court, it also may present Seventh Amendment concerns. The implication of the dissent’s interpretation of §2106 is that a court of appeals would be free to examine the sufficiency of the evidence regardless of whether the appellant had filed a Rule 50(a) motion in the district court and, in the event the appellant had filed a Rule 50(a) motion, regardless of whether the district court had ever ruled on that motion. The former is squarely foreclosed by Slocum v. New York Life Ins. Co., 228 U. S. 364 (1913), and the latter is inconsistent with this Court’s explanation of the requirements of the Seventh Amendment in Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 658 (1935) (explaining that “under the pertinent rules of the common law the court of appeals could set aside the verdict for error of law, such as the trial court’s ruling respecting the sufficiency of the evidence, and direct a new trial, but could not itself determine the issues of fact and direct a judgment for the defendant, for this would cut off the plaintiff’s unwaived right to have the issues of fact determined by a jury” (emphasis added)). Indeed, Rule 50 was drafted with such concerns in mind. See 9A C. Wright & A. Miller, Federal Practice and Procedure §2522, pp. 244–246 (2d ed. 1995) (hereinafter Federal Practice). Footnote 5 While the precise nature of the new trial motion at issue in Cone is difficult to ascertain from this Court’s description of that motion, the Court of Appeals opinion in that case confirms that the movant had properly objected to the admission of certain evidence, and then moved postverdict “for a new trial [on the basis of the inadmissible evidence] and later renewed this motion upon the basis of newly-discovered evidence.” West Virginia Pulp & Paper Co. v. Cone, 153 F. 2d 576, 580 (CA4 1946). This Court did not disturb the Court of Appeals holding that formed the basis of the movant’s entitlement to a new trial, namely “the Circuit Court of Appeals’ holding that there was prejudicial error in the admission of evidence.” 330 U. S., at 215. Footnote 6 Respondent claims that its failure to renew its Rule 50(a) motion was in reliance on the Tenth Circuit’s determination that it could order a new trial in the absence of a Rule 50(b) motion. But respondent cannot credibly maintain that it wanted the Court of Appeals to order a new trial as opposed to entering judgment. And, as the Tenth Circuit has recognized, respondent could not obtain the entry of judgment unless it complied with Rule 50(b). Cummings v. General Motors Corp., 365 F. 3d 944, 951 (2004). Respondent therefore had every incentive to comply with that Rule’s requirements. Accordingly, we reject its contention that our application of Rule 50(b) to the instant case is impermissibly retroactive. See also Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993) (“[W]e can scarcely permit the substantive law to shift and spring according to the particular equities of individual parties’ claims of actual reliance on an old rule and of harm from a retroactive application of the new rule” (internal quotation marks and brackets omitted)). Footnote 7 We reject respondent’s contention that it is entitled to a remand for reconsideration in light of Phillips v. AWH Corp., 415 F. 3d 1303 (CA Fed. 2005). The Federal Circuit has already denied respondent’s petition for rehearing raising this issue.
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546.US.164
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Reeder-Simco GMC, Inc. (Reeder), an authorized dealer of heavy-duty trucks manufactured by Volvo Trucks North America, Inc. (Volvo), generally sold those trucks through an industry-wide competitive bidding process, whereby the retail customer describes its specific product requirements and invites bids from dealers it selects based on such factors as an existing relationship, geography, and reputation. Once a Volvo dealer receives the customer’s specifications, it requests from Volvo a discount or “concession” off the wholesale price. Volvo decides on a case-by-case basis whether to offer a concession. The dealer then uses its Volvo discount in preparing its bid; it purchases trucks from Volvo only if and when the retail customer accepts its bid. Reeder was one of many regional Volvo dealers. Although nothing prohibits a Volvo dealer from bidding outside its territory, Reeder rarely bid against another Volvo dealer. In the atypical case in which a retail customer solicited a bid from more than one Volvo dealer, Volvo’s stated policy was to provide the same price concession to each dealer. In 1997, after Volvo announced plans to enlarge the size of its dealers’ markets and to reduce by almost half the number of its dealers, Reeder learned that Volvo had given another dealer a price concession greater than the discounts Reeder typically received. Reeder, suspecting it was one of the dealers Volvo sought to eliminate, filed this suit under, inter alia, §2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U. S. C. §13, alleging that its sales and profits declined because Volvo offered other dealers more favorable price concessions. At trial, Reeder presented evidence of two instances when it bid against another Volvo dealer for a particular sale. In the first, although Volvo initially offered Reeder a lower concession, Volvo ultimately matched the concession offered to the competing dealer. Neither dealer won the bid. In the second, Volvo initially offered the two dealers the same concession, but increased the other dealer’s discount after it, rather than Reeder, was selected. Reeder dominantly relied on comparisons between concessions it received on four occasions when it bid successfully against non-Volvo dealers (and thus purchased Volvo trucks), with more favorable concessions other successful Volvo dealers received in bidding processes in which Reeder did not participate. Reeder also compared concessions Volvo offered it on several occasions when it bid unsuccessfully against non-Volvo dealers (and therefore did not purchase Volvo trucks), with more favorable concessions accorded other Volvo dealers who gained contracts on which Reeder did not bid. Reeder did not look for instances in which it received a larger concession than another Volvo dealer, but acknowledged it was “quite possible” that such instances occurred. Nor did Reeder offer any statistical analysis revealing whether it was disfavored on average as compared to other dealers. The jury found a reasonable possibility that discriminatory pricing may have harmed competition between Reeder and other Volvo dealers, that Volvo’s discriminatory pricing injured Reeder, and that Reeder’s damages from Volvo’s Robinson-Patman violation exceeded $1.3 million. The District Court awarded treble damages on the Robinson-Patman Act claim, and entered judgment. Affirming, the Eighth Circuit, among other things, noted the threshold requirement that Reeder show it was a “purchaser” within the Act’s meaning; rejected Volvo’s contention that competitive bidding situations do not give rise to Robinson-Patman claims; held that the four instances in which Reeder purchased trucks following successful bids rendered it a purchaser under the Act; determined that a jury could reasonably decide Reeder was in actual competition with favored dealers at the time price differentials were imposed; and held that the jury could properly find Reeder had proved competitive injury based on evidence that (1) Volvo intended to reduce the number of its dealers, (2) Reeder lost one contract for which it competed with another Volvo dealer, (3) Reeder would have earned more profits, had it received the concessions given other dealers, and (4) Reeder’s sales declined over time. Held: A manufacturer may not be held liable for secondary-line price discrimination under the Robinson-Patman Act in the absence of a showing that the manufacturer discriminated between dealers competing to resell its product to the same retail customer. The Act does not reach the case Reeder presents. It centrally addresses price discrimination in cases involving competition between different purchasers for resale of the purchased product. Competition of that character ordinarily is not involved when a product subject to special order is sold through a customer-specific competitive bidding process. Pp. 7–15. 1. Section 2 was enacted to curb financially powerful corporations’ use of localized price-cutting tactics that gravely impaired other sellers’ competitive position. FTC v. Anheuser-Busch, Inc., 363 U. S. 536, 543, and n. 6. Augmenting §2, the Robinson-Patman Act targeted the perceived harm to competition occasioned by the advent of large chain stores able to obtain lower prices for goods than smaller buyers could demand. Robinson-Patman does not ban all price differences charged to different purchasers of similar commodities, but proscribes only “price discrimination [that] threatens to injure competition,” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 220. Of the three categories of competitive injury that may give rise to a Robinson-Patman claim, secondary-line cases, like this one, involve price discrimination that injures competition among the discriminating seller’s customers (here, Volvo’s dealerships). Reeder has satisfied the Act’s first two requirements for establishing secondary-line injury: (1) The relevant Volvo truck sales were made in interstate commerce, and (2) the trucks were of “like grade and quality,’’ 15 U. S. C. §13(a). Because Reeder has not identified any differentially-priced transaction in which it was both a “purchaser” under the Act and “in actual competition” with a favored purchaser for the same customer, see e.g., FTC v. Sun Oil Co., 371 U. S. 505, 518–519, Volvo and amicus United States maintain that Reeder cannot satisfy the Act’s third and fourth requirements—that (3) Volvo “discriminate[d] in price between” Reeder and another purchaser of Volvo trucks, and (4) “the effect of such discrimination may be . . . to injure, destroy, or prevent competition” to the advantage of a favored purchaser, i.e., one who “receive[d] the benefit of such discrimination,” ibid. Absent actual competition with a favored Volvo dealer, Reeder cannot establish the competitive injury the Act requires. Pp. 7–10. 2. The injury to competition targeted by the Robinson-Patman Act is not established by the selective comparisons Reeder presented at trial: (1) comparisons of concessions Reeder received for four successful bids against non-Volvo dealers, with larger concessions other successful Volvo dealers received for different sales on which Reeder did not bid (purchase-to-purchase comparisons); (2) comparisons of concessions offered to Reeder in connection with several unsuccessful bids against non-Volvo dealers, with greater concessions accorded other Volvo dealers who competed successfully for different sales on which Reeder did not bid (offer-to-purchase comparisons); and (3) comparisons of two occasions on which Reeder bid against another Volvo dealer (head-to-head comparisons). Pp. 10–14. (a) Because the purchase-to-purchase and offer-to-purchase comparisons fail to show that Volvo sold at a lower price to Reeder’s “competitors,” those comparisons do not support an inference of competitive injury. See Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U. S. 428, 435. Both types of comparisons fall short because in none of the discrete instances on which Reeder relied did it compete with beneficiaries of the alleged discrimination for the same customer. Nor did Reeder even attempt to show that the compared dealers were consistently favored over it. Reeder simply paired occasions on which it competed with non-Volvo dealers for a sale to Customer A with instances in which other Volvo dealers competed with non-Volvo dealers for a sale to Customer B. The compared incidents were tied to no systematic study and were separated in time by as many as seven months. This Court declines to permit an inference of competitive injury from evidence of such a mix-and-match, manipulable quality. No similar risk of manipulation occurs in cases kin to the chain-store paradigm. Here, there is no discrete “favored” dealer comparable to a chain store or a large independent department store—at least, Reeder’s evidence is insufficient to support an inference that such a dealer exists. For all that appears, Reeder, on occasion, might have gotten a better deal vis-À-vis one or more of the dealers in its comparisons. While Reeder may have competed with other Volvo dealers for the opportunity to bid on potential sales in a broad geographic area, competition at that initial stage is based on a variety of factors, including the existence vel non of a relationship between the potential bidder and the customer, geography, and reputation. Once the customer has chosen the particular dealers from which it will solicit bids, the relevant market becomes limited to the needs and demands of the particular end user, with only a handful of dealers competing for the sale. Volvo dealers’ bidding for sales in the same geographic area does not import that they in fact competed for the same customer-tailored sales. Pp. 11–12. (b) Nor is a Robinson-Patman violation established by Reeder’s evidence of two instances in which it competed head to head with another Volvo dealer. When multiple dealers bid for the business of the same customer, only one dealer will win the business and thereafter purchase the supplier’s product to fulfill its contractual commitment. Even assuming the Act applies to head-to-head transactions, Reeder did not establish that it was disfavored vis-À-vis other Volvo dealers in the rare instances in which they competed for the same sale—let alone that the alleged discrimination was substantial. Reeder’s evidence showed loss of only one sale to another Volvo dealer, a sale of 12 trucks that would have generated $30,000 in gross profits for Reeder. Per its policy, Volvo initially offered Reeder and the other dealer the same concession, but ultimately granted a larger concession to the other dealer after it had won the bid. In the only other instance of head-to-head competition, Volvo increased Reeder’s initial discount to match the discount offered the other competing Volvo dealer, but neither dealer won the bid. If price discrimination between two purchasers existed at all, it was not of such magnitude as to affect substantially competition between Reeder and the “favored” Volvo dealer. Pp. 12–13. 3. The Robinson-Patman Act signals no large departure from antitrust law’s primary concern, interbrand competition. Even if the Act’s text could be construed as Reeder urges and the Eighth Circuit held, this Court would resist interpretation geared more to the protection of existing competitors than to the stimulation of competition. There is no evidence here that any favored purchaser possesses market power, the allegedly favored purchasers are dealers with little resemblance to large independent department stores or chain operations, and the supplier’s selective price discounting fosters competition among suppliers of different brands. By declining to extend Robinson-Patman’s governance to such cases, the Court continues to construe the Act consistently with antitrust law’s broader policies. Pp. 13–14. 374 F. 3d 701, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Thomas, J., joined.
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This case concerns specially ordered products—heavy-duty trucks supplied by Volvo Trucks North America, Inc. (Volvo), and sold by franchised dealers through a competitive bidding process. In this process, the retail customer states its specifications and invites bids, generally from dealers franchised by different manufacturers. Only when a Volvo dealer’s bid proves successful does the dealer arrange to purchase the trucks, which Volvo then builds to meet the customer’s specifications. Reeder-Simco GMC, Inc. (Reeder), a Volvo dealer located in Fort Smith, Arkansas, commenced suit against Volvo alleging that Reeder’s sales and profits declined because Volvo offered other dealers more favorable price concessions than those offered to Reeder. Reeder sought redress for its alleged losses under §2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Price Discrimination Act, 49 Stat. 1526, 15 U. S. C. §13 (Robinson-Patman Act or Act), and the Arkansas Franchise Practices Act, Ark. Code Ann. §4–72–201 et seq. (2001). Reeder prevailed at trial and on appeal on both claims. We granted review on the federal claim to resolve the question whether a manufacturer offering its dealers different wholesale prices may be held liable for price discrimination proscribed by Robinson-Patman, absent a showing that the manufacturer discriminated between dealers contemporaneously competing to resell to the same retail customer. While state law designed to protect franchisees may provide, and in this case has provided, a remedy for the dealer exposed to conduct of the kind Reeder alleged, the Robinson-Patman Act, we hold, does not reach the case Reeder presents. The Act centrally addresses price discrimination in cases involving competition between different purchasers for resale of the purchased product. Competition of that character ordinarily is not involved when a product subject to special order is sold through a customer-specific competitive bidding process. I Volvo manufactures heavy-duty trucks. Reeder sells new and used trucks, including heavy-duty trucks. 374 F. 3d 701, 704 (CA8 2004). Reeder became an authorized dealer of Volvo trucks in 1995, pursuant to a five-year franchise agreement that provided for automatic one-year extensions if Reeder met sales objectives set by Volvo. Ibid. Reeder generally sold Volvo’s trucks through a competitive bidding process. Ibid. In this process, the retail customer describes its specific product requirements and invites bids from several dealers it selects. The customer’s “decision to request a bid from a particular dealer or to allow a particular dealer to bid is controlled by such factors as an existing relationship, geography, reputation, and cold calling or other marketing strategies initiated by individual dealers.” Id., at 719 (Hansen, J., concurring in part and dissenting in part). Once a Volvo dealer receives the customer’s specifications, it turns to Volvo and requests a discount or “concession” off the wholesale price (set at 80% of the published retail price). Id., at 704. It is common practice in the industry for manufacturers to offer customer-specific discounts to their dealers. Ibid.; App. 334, 337. Volvo decides on a case-by-case basis whether to offer a discount and, if so, what the discount rate will be, taking account of such factors as industry-wide demand and whether the retail customer has, historically, purchased a different brand of trucks. App. 348–349, 333–334.[Footnote 1] The dealer then uses the discount offered by Volvo in preparing its bid; it purchases trucks from Volvo only if and when the retail customer accepts its bid. Ibid. Reeder was one of many Volvo dealers, each assigned by Volvo to a geographic territory. Reeder’s territory encompassed ten counties in Arkansas and two in Oklahoma. 374 F. 3d, at 709. Although nothing prohibits a Volvo dealer from bidding outside its territory, ibid., Reeder rarely bid against another Volvo dealer, see id., at 705; 5 App. in No. 02–2462 (CA8), pp. 1621–1622 (hereinafter C. A. App.). In the atypical event that the same retail customer solicited a bid from more than one Volvo dealer, Volvo’s stated policy was to provide the same price concession to each dealer competing head to head for the same sale. 4 C. A. App. 1161–1162; 5 id., at 1619, 1621. In 1997, Volvo announced a program it called “Volvo Vision,” in which the company addressed problems it faced in the market for heavy trucks, among them, the company’s assessment that it had too many dealers. Volvo projected enlarging the size of its dealers’ markets and reducing the number of dealers from 146 to 75. 374 F. 3d, at 705. Coincidentally, Reeder learned that Volvo had given another dealer a price concession greater than the concessions Reeder typically received, and “Reeder came to suspect it was one of the dealers Volvo sought to eliminate.” Ibid. Reeder filed suit against Volvo in February 2000, alleging losses attributable to Volvo’s violation of the Arkansas Franchise Practices Act and the Robinson-Patman Act. At trial, Reeder’s vice-president, William E. Heck, acknowledged that Volvo’s policy was to offer equal concessions to Volvo dealers bidding against one another for a particular contract, but he contended that the policy “was not executed.” 4 C. A. App. 1162. Reeder presented evidence concerning two instances over the five-year course of its authorized dealership when Reeder bid against other Volvo dealers for a particular sale. 374 F. 3d, at 705, 708–709. One of the two instances involved Reeder’s bid on a sale to Tommy Davidson Trucking. 4 C. A. App. 1267–1268. Volvo initially offered Reeder a concession of 17%, which Volvo, unprompted, increased to 18.1% and then, one week later, to 18.9%, to match the concession Volvo had offered to another of its dealers. 5 id., at 1268–1272. Neither dealer won the bid. Id., at 1272. The other instance involved Hiland Dairy, which solicited bids from both Reeder and Southwest Missouri Truck Center. Id., at 1626–1627. Per its written policy, Volvo offered the two dealers the same concession, and Hiland selected Southwest Missouri, a dealer from which Hiland had previously purchased trucks. Ibid. After selecting Southwest Missouri, Hiland insisted on the price Southwest Missouri had bid prior to a general increase in Volvo’s prices; Volvo obliged by increasing the size of the discount. Id., at 1627. See also id., at 1483–1488; 374 F. 3d, at 720 (Hansen, J., concurring in part and dissenting in part). Reeder dominantly relied on comparisons between concessions Volvo offered when Reeder bid against non-Volvo dealers, with concessions accorded to other Volvo dealers similarly bidding against non-Volvo dealers for other sales. Reeder’s evidence compared concessions Reeder received on four occasions when it bid successfully against non-Volvo dealers (and thus purchased Volvo trucks), with more favorable concessions other successful Volvo dealers received in connection with bidding processes in which Reeder did not participate. Id., at 705–706. Reeder also compared concessions offered by Volvo on several occasions when Reeder bid unsuccessfully against non-Volvo dealers (and therefore did not purchase Volvo trucks), with more favorable concessions received by other Volvo dealers who gained contracts on which Reeder did not bid. Id., at 706–707. Reeder’s vice-president, Heck, testified that Reeder did not look for instances in which it received a larger concession than another Volvo dealer, although he acknowledged it was “quite possible” that such instances occurred. 5 C. A. App. 1462. Nor did Reeder endeavor to determine by any statistical analysis whether Reeder was disfavored on average as compared to another dealer or set of dealers. Id., at 1462–1464. The jury found that there was a reasonable possibility that discriminatory pricing may have harmed competition between Reeder and other Volvo truck dealers, and that Volvo’s discriminatory pricing injured Reeder. App. 480–486. It further found that Reeder’s damages from Volvo’s Robinson-Patman Act violation exceeded $1.3 million. Id., at 486.[Footnote 2] The District Court summarily denied Volvo’s motion for judgment as a matter of law and the company’s alternative motion for new trial or remittitur, awarded treble damages on the Robinson-Patman Act claim, and entered judgment. A divided Court of Appeals for the Eighth Circuit affirmed. The appeals court noted that, “as a threshold matter[,] Reeder had to show [that] it was a ‘purchaser’ within the meaning of the [Act],” 374 F. 3d, at 708, i.e., that “there were actual sales at two different prices[,] … a sale to [Reeder] and a sale to another Volvo dealer,” id., at 707–708. Rejecting Volvo’s contention that competitive bidding situations do not give rise to claims under the Robinson-Patman Act, id., at 708–709, the Court of Appeals observed that Reeder was “more than an unsuccessful bidder,” id., at 709. The four instances in which Reeder “actually purchased Volvo trucks following successful bids on contracts,” the court concluded, sufficed to render Reeder a purchaser within the meaning of the Act. Ibid. The Court of Appeals next determined that a jury could reasonably decide that Reeder was “in actual competition” with favored dealers. Ibid. “[A]s of the time the price differential was imposed,” the court reasoned, “the favored and disfavored purchasers competed at the same functional level . . . and within the same geographic market.” Ibid. (quoting Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F. 2d 578, 585 (CA2 1987)). The court further held that the jury could properly find from the evidence that Reeder had proved competitive injury from price discrimination. Specifically, the court pointed to evidence showing that (1) Volvo intended to reduce the number of its dealers; (2) Reeder lost the Hiland Dairy contract, for which it competed head to head with another Volvo dealer; (3) Reeder would have earned more profits, had it received the concessions other dealers received; and (4) Reeder’s sales had declined over a period of time. 374 F. 3d, at 711–712. The court also affirmed the award of treble damages to Reeder. Id., at 712–714. Judge Hansen dissented as to the Robinson-Patman Act claim. “Traditional [Robinson-Patman Act] cases,” he observed, “involve sellers and purchasers that carry inventory or deal in fungible goods.” Id., at 718. The majority, Judge Hansen commented, “attempt[ed] to fit a square peg into a round hole,” ibid., when it extended the Act’s reach to the marketplace for heavy-duty trucks, where “special-order products are sold to individual, pre-identified customers only after competitive bidding,” ibid. There may be competition among dealers for the opportunity to bid on potential sales, he noted, but “[o]nce bidding begins, . . . the relevant market becomes limited to the needs and demands of a particular end user, with only a handful of dealers competing for the ultimate sale.” Id., at 719. Violation of the Act, in Judge Hansen’s view, could not be predicated on the instances Reeder identified in which it was a purchaser, for “there was no actual competition between” Reeder and another Volvo dealer at the time of Reeder’s purchases. Ibid. “Without proof of actual competition” for the same customer when the requisite purchases were made, he concluded, “Reeder cannot demonstrate a reasonable possibility of competitive injury.” Ibid. We granted certiorari, 544 U. S. ___ (2005), to resolve this question: May a manufacturer be held liable for secondary-line price discrimination under the Robinson-Patman Act in the absence of a showing that the manufacturer discriminated between dealers competing to resell its product to the same retail customer? Satisfied that the Court of Appeals erred in answering that question in the affirmative, we reverse the Eighth Circuit’s judgment. II Section 2, “when originally enacted as part of the Clayton Act in 1914, was born of a desire by Congress to curb the use by financially powerful corporations of localized price-cutting tactics which had gravely impaired the competitive position of other sellers.” FTC v. Anheuser-Busch, Inc., 363 U. S. 536, 543, and n. 6 (1960) (citing H. R. Rep. No. 627, 63d Cong., 2d Sess., 8 (1914); S. Rep. No. 698, 63d Cong., 2d Sess., 2–4 (1914)). Augmenting that provision in 1936 with the Robinson-Patman Act, Congress sought to target the perceived harm to competition occasioned by powerful buyers, rather than sellers; specifically, Congress responded to the advent of large chain stores, enterprises with the clout to obtain lower prices for goods than smaller buyers could demand. See 14 H. Hovenkamp, Antitrust Law ¶2302, p. 11 (2d ed. 2006) (hereinafter Hovenkamp); P. Areeda & L. Kaplow, Antitrust Analysis ¶602, pp. 908–909 (5th ed. 1997) (hereinafter Areeda). The Act provides, in relevant part: “It shall be unlawful for any person engaged in commerce … to discriminate in price between different purchasers of commodities of like grade and quality, … where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them … .” 15 U. S. C. §13(a). Pursuant to §4 of the Clayton Act, a private plaintiff may recover threefold for actual injury sustained as a result of a violation of the Robinson-Patman Act. See 15 U. S. C. §15(a); J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S. 557, 562 (1981). Mindful of the purposes of the Act and of the antitrust laws generally, we have explained that Robinson-Patman does not “ban all price differences charged to different purchasers of commodities of like grade and quality,” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 220 (1993) (internal quotation marks omitted); rather, the Act proscribes “price discrimination only to the extent that it threatens to injure competition,” ibid. Our decisions describe three categories of competitive injury that may give rise to a Robinson-Patman Act claim: primary-line, secondary-line, and tertiary-line. Primary-line cases entail conduct—most conspicuously, predatory pricing—that injures competition at the level of the discriminating seller and its direct competitors. See, e.g., id., at 220–222; see also Hovenkamp ¶2301a, pp. 4–6. Secondary-line cases, of which this is one, involve price discrimination that injures competition among the discriminating seller’s customers (here, Volvo’s dealerships); cases in this category typically refer to “favored” and “disfavored” purchasers. See ibid.; Texaco Inc. v. Hasbrouck, 496 U. S. 543, 558, n. 15 (1990). Tertiary-line cases involve injury to competition at the level of the purchaser’s customers. See Areeda ¶601e, p. 907. To establish the secondary-line injury of which it complains, Reeder had to show that (1) the relevant Volvo truck sales were made in interstate commerce; (2) the trucks were of “like grade and quality’’; (3) Volvo “discriminate[d] in price between” Reeder and another purchaser of Volvo trucks; and (4) “the effect of such discrimination may be . . . to injure, destroy, or prevent competition” to the advantage of a favored purchaser, i.e., one who “receive[d] the benefit of such discrimination.” 15 U. S. C. §13(a). It is undisputed that Reeder has satisfied the first and second requirements. Volvo and the United States, as amicus curiae, maintain that Reeder cannot satisfy the third and fourth requirements, because Reeder has not identified any differentially-priced transaction in which it was both a “purchaser” under the Act and “in actual competition” with a favored purchaser for the same customer. A hallmark of the requisite competitive injury, our decisions indicate, is the diversion of sales or profits from a disfavored purchaser to a favored purchaser. FTC v. Sun Oil Co., 371 U. S. 505, 518–519 (1963) (evidence showed patronage shifted from disfavored dealers to favored dealers); Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U. S. 428, 437–438, and n. 8 (1983) (complaint “supported by direct evidence of diverted sales”). We have also recognized that a permissible inference of competitive injury may arise from evidence that a favored competitor received a significant price reduction over a substantial period of time. See FTC v. Morton Salt Co., 334 U. S. 37, 49–51 (1948); Falls City Industries, 460 U. S., at 435. Absent actual competition with a favored Volvo dealer, however, Reeder cannot establish the competitive injury required under the Act. III The evidence Reeder offered at trial falls into three categories: (1) comparisons of concessions Reeder received for four successful bids against non-Volvo dealers, with larger concessions other successful Volvo dealers received for different sales on which Reeder did not bid (purchase-to-purchase comparisons); (2) comparisons of concessions offered to Reeder in connection with several unsuccessful bids against non-Volvo dealers, with greater concessions accorded other Volvo dealers who competed successfully for different sales on which Reeder did not bid (offer-to-purchase comparisons); and (3) evidence of two occasions on which Reeder bid against another Volvo dealer (head-to-head comparisons). The Court of Appeals concluded that Reeder demonstrated competitive injury under the Act because Reeder competed with favored purchasers “at the same functional level . . . and within the same geographic market.” 374 F. 3d, at 709 (quoting Best Brands, 842 F. 2d, at 585). As we see it, however, selective comparisons of the kind Reeder presented do not show the injury to competition targeted by the Robinson-Patman Act. A Both the purchase-to-purchase and the offer-to-purchase comparisons fall short, for in none of the discrete instances on which Reeder relied did Reeder compete with beneficiaries of the alleged discrimination for the same customer. Nor did Reeder even attempt to show that the compared dealers were consistently favored vis-À-vis Reeder. Reeder simply paired occasions on which it competed with non-Volvo dealers for a sale to Customer A with instances in which other Volvo dealers competed with non-Volvo dealers for a sale to Customer B. The compared incidents were tied to no systematic study and were separated in time by as many as seven months. See 374 F. 3d, at 706, 710. We decline to permit an inference of competitive injury from evidence of such a mix-and-match, manipulable quality. See Tr. of Oral Arg. 34–35, 55. No similar risk of manipulation occurs in cases kin to the chain-store paradigm. Here, there is no discrete “favored” dealer comparable to a chain store or a large independent department store—at least, Reeder’s evidence is insufficient to support an inference of such a dealer or set of dealers. For all we know, Reeder, on occasion, might have gotten a better deal vis-À-vis one or more of the dealers in its comparisons. See supra, at 5. Reeder may have competed with other Volvo dealers for the opportunity to bid on potential sales in a broad geographic area. At that initial stage, however, competition is not affected by differential pricing; a dealer in the competitive bidding process here at issue approaches Volvo for a price concession only after it has been selected by a retail customer to submit a bid. Competition for an opportunity to bid, we earlier observed, is based on a variety of factors, including the existence vel non of a relationship between the potential bidder and the customer, geography, and reputation. See supra, at 2.[Footnote 3] We reiterate in this regard an observation made by Judge Hansen, dissenting from the Eighth Circuit’s Robinson-Patman holding: Once a retail customer has chosen the particular dealers from which it will solicit bids, “the relevant market becomes limited to the needs and demands of a particular end user, with only a handful of dealers competing for the ultimate sale.” 374 F. 3d, at 719. That Volvo dealers may bid for sales in the same geographic area does not import that they in fact competed for the same customer-tailored sales. In sum, the purchase-to-purchase and offer-to-purchase comparisons fail to show that Volvo sold at a lower price to Reeder’s “competitors,” hence those comparisons do not support an inference of competitive injury. See Falls City Industries, 460 U. S., at 435 (inference of competitive injury under Morton Salt arises from “proof of a substantial price discrimination between competing purchasers over time” (emphasis added)). B Reeder did offer evidence of two instances in which it competed head to head with another Volvo dealer. See supra, at 4. When multiple dealers bid for the business of the same customer, only one dealer will win the business and thereafter purchase the supplier’s product to fulfill its contractual commitment. Because Robinson-Patman “prohibits only discrimination ‘between different purchasers,’ ” Brief for Petitioner 26 (quoting 15 U. S. C. §13(a); emphasis added), Volvo and the United States argue, the Act does not reach markets characterized by competitive bidding and special-order sales, as opposed to sales from inventory. See Brief for Petitioner 27; Brief for United States as Amicus Curiae 9, 17–20. We need not decide that question today. Assuming the Act applies to the head-to-head transactions, Reeder did not establish that it was disfavored vis-À-vis other Volvo dealers in the rare instances in which they competed for the same sale—let alone that the alleged discrimination was substantial. See 1 ABA Section of Antitrust Law, Antitrust Law Developments 478–479 (5th ed. 2002) (“No inference of injury to competition is permitted when the discrimination is not substantial.” (collecting cases)). Reeder’s evidence showed loss of only one sale to another Volvo dealer, a sale of 12 trucks that would have generated $30,000 in gross profits for Reeder. 374 F. 3d, at 705. Per its policy, Volvo initially offered Reeder and the other dealer the same concession. Volvo ultimately granted a larger concession to the other dealer, but only after it had won the bid. In the only other instance of head-to-head competition Reeder identified, Volvo increased Reeder’s initial 17% discount to 18.9%, to match the discount offered to the other competing Volvo dealer; neither dealer won the bid. See supra, at 4. In short, if price discrimination between two purchasers existed at all, it was not of such magnitude as to affect substantially competition between Reeder and the “favored” Volvo dealer. IV Interbrand competition, our opinions affirm, is the “primary concern of antitrust law.” Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 51–52, n. 19 (1977). The Robinson-Patman Act signals no large departure from that main concern. Even if the Act’s text could be construed in the manner urged by Reeder and embraced by the Court of Appeals, we would resist interpretation geared more to the protection of existing competitors than to the stimulation of competition.[Footnote 4] In the case before us, there is no evidence that any favored purchaser possesses market power, the allegedly favored purchasers are dealers with little resemblance to large independent department stores or chain operations, and the supplier’s selective price discounting fosters competition among suppliers of different brands. See id., at 51–52 (observing that the market impact of a vertical practice, such as a change in a supplier’s distribution system, may be a “simultaneous reduction of intrabrand competition and stimulation of interbrand competition”). By declining to extend Robinson-Patman’s governance to such cases, we continue to construe the Act “consistently with broader policies of the antitrust laws.” Brooke Group, 509 U. S., at 220 (quoting Great Atlantic & Pacific Tea Co. v. FTC, 440 U. S. 69, 80, n. 13 (1979)); see Automatic Canteen Co. of America v. FTC, 346 U. S. 61, 63 (1953) (cautioning against Robinson-Patman constructions that “extend beyond the prohibitions of the Act and, in doing so, help give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation”).[Footnote 5] * * * For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 To shield its ability to compete with other manufacturers, Volvo keeps confidential its precise method for calculating concessions offered to dealers. 374 F. 3d 701, 704–705 (CA8 2004); App. 337–338. Footnote 2 The jury also awarded Reeder damages of $513,750 on Reeder’s state-law claim under the Arkansas Franchise Practices Act. No question is before us respecting that claim, which trained on Volvo’s alleged design to eliminate Reeder as a Volvo dealer. See supra, at 4. Footnote 3 A dealer’s reputation for securing favorable concessions, we recognize, may influence the customer’s bidding invitations. Cf. post, at 3, n. 2. We do not pursue that point here, however, because Reeder did not present—or even look for—evidence that Volvo consistently disfavored Reeder while it consistently favored certain other dealers. See supra, at 5. Footnote 4 The dissent assails Volvo’s decision to reduce the number of its dealers. Post, at 2, 5. But Robinson-Patman does not bar a manufacturer from restructuring its distribution networks to improve the efficiency of its operations. If Volvo did not honor its obligations to Reeder as its franchisee, “[a]ny remedy . . . lies in state laws addressing unfair competition and the rights of franchisees, not in the Robinson-Patman Act.” Brief for United States as Amicus Curiae 28. Footnote 5 See also 14 H. Hovenkamp, Antitrust Law ¶2333c, p. 109 (2d ed. 2006) (commenting that the Eighth Circuit’s expansive interpretation “views the [Robinson-Patman Act] as a guarantee of equal profit margins on sales actually made,” and thereby exposes manufacturers to treble damages unless they “charge uniform prices to their dealers”).
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546.US.303
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Petitioner Wachovia Bank, National Association (Wachovia), is a national banking association with its designated main office in North Carolina and branch offices in many States, including South Carolina. Plaintiff-respondent Schmidt and other South Carolina citizens sued Wachovia in a South Carolina state court for fraudulently inducing them to participate in an illegitimate tax shelter. Shortly thereafter, Wachovia filed a petition in Federal District Court, seeking to compel arbitration of the dispute. As the sole basis for federal-court jurisdiction, Wachovia alleged the parties’ diverse citizenship. See 28 U. S. C. §1332. The District Court denied Wachovia’s petition on the merits. On appeal, the Fourth Circuit determined that the District Court lacked subject-matter jurisdiction over the action, vacated the judgment, and instructed the District Court to dismiss the case. The appeals court observed that Wachovia’s citizenship for diversity purposes is controlled by §1348, which provides that “national banking associations” are “deemed citizens of the States in which they are respectively located.” As the court read §1348, Wachovia is “located” in, and is therefore a “citizen” of, every State in which it maintains a branch office. Thus, Wachovia’s South Carolina branch operations rendered it a citizen of that State. Given the South Carolina citizenship of the opposing parties, the court concluded that the matter could not be adjudicated in federal court. Held: A national bank, for §1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located. Pp. 5–15. (a) When Congress first authorized national banks, it allowed them to sue and be sued in federal court in any and all civil proceedings. State banks, however, could initiate actions in federal court only on the basis of diversity of citizenship or the existence of a federal question. Congress ended national banks’ automatic qualification for federal jurisdiction in 1882, placing them “on the same footing as the banks of the state where they were located,” Leather Manufacturers’ Bank v. Cooper, 120 U. S. 778, 780. In an 1887 enactment, Congress first used the “located” language today contained in §1348. Like its 1882 predecessor, the 1887 Act “sought to limit … the access of national banks to, and their suability in, the federal courts to the same extent [as] non-national banks.” Mercantile Nat. Bank at Dallas v. Langdeau, 371 U. S. 555, 565–566. In the Judicial Code of 1911, Congress combined two formerly discrete provisions on proceedings involving national banks, but retained without alteration the “located” clause. Finally, as part of the 1948 Judicial Code revision, Congress enacted §1348 in its current form. Pp. 5–7. (b) The Fourth Circuit advanced three principal reasons for deciding that Wachovia is “located” in, and therefore a “citizen” of, every State in which it maintains a branch office. First, consulting dictionaries, the court observed that the term “located” refers to “physical presence in a place.” Next, the court noted that §1348 uses two distinct terms to refer to the presence of a banking association: “established” and “located.” The court concluded that, to give independent meaning to each word, “established” should be read to refer to the bank’s charter location and “located,” to the place where the bank has a physical presence. Finally, the court relied on Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35, in which this Court interpreted the term “located” in the former venue statute for national banks, see 12 U. S. C. §94 (1976 ed.), as encompassing any county in which a bank maintains a branch office. Viewing the jurisdiction and venue statutes as pertaining to the same subject matter, the court concluded that, under the in pari materia canon, the two statutes should be interpreted consistently. Pp. 7–8. (c) None of the Fourth Circuit’s rationales persuade this Court to read §1348 to attribute to a national bank, for diversity-jurisdiction purposes, the citizenship of each State in which the bank has established branch operations. First, the term “located,” as it appears in the National Bank Act, has no fixed, plain meaning. In some provisions, the word unquestionably refers to the site of the banking association’s designated main office, but in others, “located” apparently refers to or includes branch offices. Recognizing the controlling significance of context, this Court stated in Bougas: “There is no enduring rigidity about the word ‘located.’ ” 434 U. S., at 44. Second, Congress may well have comprehended the words “located” and “established,” as used in §1348, as synonymous terms. When Congress enacted §1348’s statutory predecessors and §1348 itself, a national bank was almost always “located” only in the State in which it was “established,” under any of the proffered definitions of the two words. For with rare exceptions a national bank could not operate a branch outside its home State until 1994, when Congress broadly authorized national banks to establish branches across state lines. Congress’ use of the two terms may be best explained as a coincidence of statutory codification. Deriving from separate provisions enacted in different years, the word “established” appearing in the first paragraph of §1348 and the word “located” appearing in the second paragraph were placed in the same section in the 1911 revision. The codifying Act stated that provisions substantially the same as existing statutes should not be treated as new enactments. Thus, it is unsurprising that, in 1947, this Court, referring to a national bank’s citizenship under the 1911 Act, used the terms “established” and “located” as alternatives. See Cope v. Anderson, 331 U. S. 461, 467. Finally, Bougas does not control §1348’s meaning. Although it is true that, under the in pari materia canon, statutes addressing the same subject matter generally should be read “ ‘as if they were one law,’ ” Erlenbaugh v. United States, 409 U. S. 239, 243, venue and subject-matter jurisdiction are not concepts of the same order. Venue, largely a matter of litigational convenience, is waived if not timely raised. Subject-matter jurisdiction, on the other hand, concerns a court’s competence to adjudicate a particular category of cases; a matter far weightier than venue, subject-matter jurisdiction must be considered by the court on its own motion, even if no party raises an objection. Cognizant that venue “is primarily a matter of choosing a convenient forum,” Leroy v. Great Western United Corp., 443 U. S. 173, 180, the Court in Bougas stressed that its “interpretation of [the former] §94 [would] not inconvenience the bank or unfairly burden it with distant litigation,” 434 U. S., at 44, n. 10. Subject-matter jurisdiction, however, does not entail an assessment of convenience. It poses the question “whether” the Legislature empowered the court to hear cases of a certain genre. Thus, the considerations that account for the Bougas decision are inapplicable to §1348, a prescription governing subject-matter jurisdiction, and the Court of Appeals erred in interpreting §1348 in pari materia with the former §94. Significantly, Bougas’ reading of former §94 effectively aligned the treatment of national banks for venue purposes with the treatment of state banks and corporations. By contrast, the Fourth Circuit’s decision in this case severely constricts national banks’ access to diversity jurisdiction as compared to the access generally available to corporations, for corporations ordinarily rank as citizens only of States in which they are incorporated or maintain their principal place of business, and are not deemed citizens of every State in which they maintain a business establishment. Pp. 8–14. 388 F. 3d 414, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the case.
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This case concerns the citizenship, for purposes of federal-court diversity jurisdiction, of national banks, i.e., corporate entities chartered not by any State, but by the Comptroller of the Currency of the U. S. Treasury. Congress empowered federal district courts to adjudicate civil actions between “citizens of different States” where the amount in controversy exceeds $75,000. 28 U. S. C. §1332(a)(1). A business organized as a corporation, for diversity jurisdiction purposes, is “deemed to be a citizen of any State by which it has been incorporated” and, since 1958, also “of the State where it has its principal place of business.” §1332(c)(1). State banks, usually chartered as corporate bodies by a particular State, ordinarily fit comfortably within this prescription. Federally chartered national banks do not, for they are not incorporated by “any State.” For diversity jurisdiction purposes, therefore, Congress has discretely provided that national banks “shall … be deemed citizens of the States in which they are respectively located.” §1348. The question presented turns on the meaning, in §1348’s context, of the word “located.” Does it signal, as the petitioning national bank and the United States, as amicus curiae, urge, that the bank’s citizenship is determined by the place designated in the bank’s articles of association as the location of its main office? Or does it mean, in addition, as respondents urge and the Court of Appeals held, that a national bank is a citizen of every State in which it maintains a branch? Recognizing that “located” is not a word of “enduring rigidity,” Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35, 44 (1977), but one that gains its precise meaning from context, we hold that a national bank, for §1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located. Were we to hold, as the Court of Appeals did, that a national bank is additionally a citizen of every State in which it has established a branch, the access of a federally chartered bank to a federal forum would be drastically curtailed in comparison to the access afforded state banks and other state-incorporated entities. Congress, we are satisfied, created no such anomaly. I Petitioner Wachovia Bank, National Association (Wachovia), is a national banking association with its designated main office in Charlotte, North Carolina.[Footnote 1] Wachovia operates branch offices in many States, including South Carolina.[Footnote 2] The litigation before us commenced when plaintiff-respondent Daniel G. Schmidt III and others, citizens of South Carolina, sued Wachovia in a South Carolina state court for fraudulently inducing them to participate in an illegitimate tax shelter. Shortly thereafter, Wachovia filed a petition in the United States District Court for the District of South Carolina, seeking to compel arbitration of the dispute. As the sole basis for federal-court jurisdiction, Wachovia alleged the parties’ diverse citizenship. See 28 U. S. C. §1332. The District Court denied Wachovia’s petition on the merits; neither the parties nor the court questioned the existence of federal subject-matter jurisdiction. On appeal, a divided Fourth Circuit panel determined that the District Court lacked diversity jurisdiction over the action; it therefore vacated the judgment and instructed the District Court to dismiss the case. The Court of Appeals’ majority observed that Wachovia’s citizenship for diversity purposes is controlled by §1348, which provides that “national banking associations” are “deemed citizens of the States in which they are respectively located.” As the panel majority read §1348, Wachovia is “located” in, and is therefore a “citizen” of, every State in which it maintains a branch office. Thus Wachovia’s branch operations in South Carolina, in the majority’s view, rendered the bank a citizen of South Carolina. Given the South Carolina citizenship of the opposing parties, the majority concluded that the matter could not be adjudicated in federal court. 388 F. 3d 414, 432 (CA4 2004). Circuit Judge King dissented. He read §1348 and its statutory precursors to provide national banks with “the same access to federal courts as that accorded other banks and corporations.” Id., at 434. On his reading, Wachovia is a citizen only of North Carolina, the State in which its main office is located, not of every State in which it maintains a branch office; accordingly, he concluded, Wachovia’s petition qualified for federal-court adjudication.[Footnote 3] We granted certiorari to resolve the disagreement among Courts of Appeals on the meaning of §1348. 545 U. S. ___ (2005). Compare Horton v. Bank One, N. A., 387 F. 3d 426, 429, 431 (CA5 2004) (for §1348 purposes, “a national bank is not ‘located’ in, and thus [is] not a citizen of, every state in which it has a branch”; rather, the provision retains “jurisdictional parity for national banks vis-À-vis state banks and corporations”), and Firstar Bank, N. A. v. Faul, 253 F. 3d 982, 993–994 (CA7 2001) (same), with 388 F. 3d, at 432 (§1348 renders national bank a citizen, not only of the State in which its main office is located, but also of every State in which it has branch operations), and World Trade Center Properties, LLC v. Hartford Fire Ins. Co., 345 F. 3d 154, 161 (CA2 2003) (dictum) (same). II When Congress first authorized national banks in 1863, it specified that any “suits, actions, and proceedings by and against [them could] be had” in federal court. See Act of Feb. 25, 1863, §59, 12 Stat. 681. National banks thus could “sue and be sued in the federal district and circuit courts solely because they were national banks, without regard to diversity, amount in controversy or the existence of a federal question in the usual sense.” Mercantile Nat. Bank at Dallas v. Langdeau, 371 U. S. 555, 565–566 (1963). State banks, however, like other state-incorporated entities, could initiate actions in federal court only on the basis of diversity of citizenship or the existence of a federal question. See Petri v. Commercial Nat. Bank of Chicago, 142 U. S. 644, 648–649 (1892). Congress ended national banks’ automatic qualification for federal jurisdiction in 1882. An enactment that year provided in relevant part: “[T]he jurisdiction for suits hereafter brought by or against any association established under any law providing for national-banking associations … shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national-banking associations may be doing business when such suits may be begun[.]” Act of July 12, 1882, §4, 22 Stat. 163. Under this measure, national banks could no longer invoke federal-court jurisdiction solely “on the ground of their Federal origin,” Petri, 142 U. S., at 649; instead, for federal jurisdictional purposes, Congress placed national banks “on the same footing as the banks of the state where they were located,” Leather Manufacturers’ Bank v. Cooper, 120 U. S. 778, 780 (1887). In 1887 revisions to prescriptions on federal jurisdiction, Congress replaced the 1882 provision on jurisdiction over national banks and first used the “located” language today contained in §1348. The 1887 provision stated in relevant part: “[A]ll national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.” Act of Mar. 3, 1887, §4, 24 Stat. 554–555 (emphasis added).[Footnote 4] Like its 1882 predecessor, the 1887 Act “sought to limit … the access of national banks to, and their suability in, the federal courts to the same extent to which non-national banks [were] so limited.” Langdeau, 371 U. S., at 565–566. In the Judicial Code of 1911,[Footnote 5] Congress combined two formerly discrete provisions on proceedings involving national banks, but retained without alteration the clause deeming national banks to be “citizens of the States in which they are respectively located.” Act of Mar. 3, 1911, §24 (Sixteenth), 36 Stat. 1091–1093.[Footnote 6] Finally, as part of the 1948 Judicial Code revision, Congress enacted §1348 in its current form. Act of June 25, 1948, 62 Stat. 933. The provision now reads: The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter. “All national banking associations shall, for the purpose of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” 28 U. S. C. §1348. III The Fourth Circuit panel majority advanced three principal reasons for deciding that Wachovia is “located” in, and therefore a “citizen” of, every State in which it maintains a branch office. First, consulting dictionaries, the Court of Appeals observed that “[i]n ordinary parlance” the term “located” refers to “physical presence in a place.” 388 F. 3d, at 416–417 (internal quotation marks omitted). Banks have a physical presence, the Fourth Circuit stated, wherever they operate branches. Id., at 417. Next, the court noted, “Section 1348 uses two distinct terms to refer to the presence of a banking association: ‘established’ and ‘located.’ ” Id., at 419. “To give independent meaning” to each word, the court said, “it is most reasonable to understand the place where a national bank is ‘established’ to refer to a bank’s charter location, and to understand the place where it is ‘located’ to refer to the place or places where it has a physical presence.” Ibid. Finally, the Court of Appeals stressed that in Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35 (1977), this Court interpreted the term “located” in the former venue statute for national banks, see 12 U. S. C. §94 (1976 ed.), as encompassing any county in which a bank maintains a branch office. 388 F. 3d, at 419–420. Reasoning that “the jurisdiction and venue statutes pertain to the same subject matter, namely the amenability of national banking associations to suit in federal court,” the panel majority concluded that, “under the in pari materia canon[,] the two statutes should be interpreted” consistently. Id., at 422. IV None of the Court of Appeals’ rationales persuade us to read §1348 to attribute to a national bank, for diversity jurisdiction purposes, the citizenship of each State in which the bank has established branch operations. First, the term “located,” as it appears in the National Bank Act, has no fixed, plain meaning. In some provisions, the word unquestionably refers to a single place: the site of the banking association’s designated main office. See, e.g., 12 U. S. C. §52 (national bank’s capital stock certificates must state “the name and location of the association”); §55 (requiring notice of sale of capital stock “in a newspaper of the city or town in which the bank is located”); §75 (bank’s regular annual shareholders’ meeting shall be rescheduled when it “falls on a legal holiday in the State in which the bank is located”); §182 (requiring publication of a notice of dissolution “in the city or town in which the association is located”). In other provisions, “located” apparently refers to or includes branch offices. See, e.g., §36(j) (defining “branch” to include “any branch place of business located in any State”); §85 (limiting interest rate charged by national bank to “rate allowed by the laws of the State, Territory, or District where the bank is located”) (construed in OCC Interpretive Letter No. 822 (Feb. 17, 1998), [1997–1998 Transfer Binder] CCH Fed. Banking L. Rep. ¶81–265, pp. 90,256-90,257); §92 (permitting national bank to act as insurance agent in certain circumstances when bank is “located and doing business in any place the population of which does not exceed five thousand inhabitants”) (construed in 12 CFR §7.1001 (2005)).[Footnote 7] Recognizing the controlling significance of context, we stated in Bougas, regarding a venue provision for national banks: “There is no enduring rigidity about the word ‘located.’ ” 434 U. S., at 44. Second, Congress may well have comprehended the words “located” and “established,” as used in §1348, not as contrasting, but as synonymous or alternative terms. When Congress enacted §1348’s statutory predecessors and then §1348 itself, a national bank was almost always “located” only in the State in which it was “established,” under any of the proffered definitions of the two words, for, with rare exceptions, a national bank could not operate a branch outside its home State. Not until 1994 did Congress provide broad authorization for national banks to establish branches across state lines. See supra, at 3, n. 2. Congress’ use of the two terms may be best explained as a coincidence of statutory codification. Deriving from separate provisions enacted in different years, the word “established” appearing in the first paragraph of §1348 and the word “located” appearing in the second paragraph were placed in the same section in the 1911 revision of the Judicial Code. See supra, at 6–7, n. 6. The codifying Act explicitly stated that “so far as [its provisions were] substantially the same as existing statutes,” they should “be construed as continuations thereof, and not as new enactments.” Act of Mar. 3, 1911, §294, 36 Stat. 1167; see Federal Intermediate Credit Bank of Columbia v. Mitchell, 277 U. S. 213, 216 (1928) (1911 Act “was in substance a reenactment of the earlier provisions in respect of … jurisdiction”). In this light, it is unsurprising that, in 1947, this Court, referring to a national bank’s citizenship under the 1911 Act, used the terms “located” and “established” as alternatives. See Cope v. Anderson, 331 U. S. 461, 467 (1947) (“For jurisdictional purposes, a national bank is a ‘citizen’ of the state in which it is established or located[.]”).[Footnote 8] Finally, Bougas does not control the meaning of §1348. In that case, we construed a now-repealed venue provision, which stated that actions against national banking associations could be filed “in any State, county, or municipal court in the county or city in which said association [was] located.” 434 U. S., at 35–36 (quoting 12 U. S. C. §94 (1976 ed.)). We held that, for purposes of this provision, a national bank was located, and venue was therefore proper, in any county or city where the bank maintained a branch office. 434 U. S., at 44–45. True, under the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read “ ‘as if they were one law.’ ” Erlenbaugh v. United States, 409 U. S. 239, 243 (1972) (quoting United States v. Freeman, 3 How. 556, 564 (1845)). But venue and subject-matter jurisdiction are not concepts of the same order. Venue is largely a matter of litigational convenience; accordingly, it is waived if not timely raised. See, e.g., Heckler v. Ringer, 466 U. S. 602, 638, n. 25 (1984); Fed. Rule Civ. Proc. 12(h)(1). Subject-matter jurisdiction, on the other hand, concerns a court’s competence to adjudicate a particular category of cases; a matter far weightier than venue, subject-matter jurisdiction must be considered by the court on its own motion, even if no party raises an objection. See, e.g., Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884); Fed. Rule Civ. Proc. 12(h)(3). Cognizant that venue “is primarily a matter of choosing a convenient forum,” Leroy v. Great Western United Corp., 443 U. S. 173, 180 (1979), the Court in Bougas stressed that its “interpretation of [the former] §94 [would] not inconvenience the bank or unfairly burden it with distant litigation,” 434 U. S., at 44, n. 10. Subject-matter jurisdiction, however, does not entail an assessment of convenience. It poses a “whether,” not a “where” question: Has the Legislature empowered the court to hear cases of a certain genre? See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, 168 (1939) (“This basic difference between the court’s power and the litigant’s convenience is historic in the federal courts.”). Thus, the considerations that account for our decision in Bougas are inapplicable to §1348, a prescription governing subject-matter jurisdiction, and the Court of Appeals erred in interpreting §1348 in pari materia with the former §94. Significantly, this Court’s reading of the venue provision in Bougas effectively aligned the treatment of national banks for venue purposes with the treatment of state banks and corporations. For venue in suits against state banks and other state-created corporations typically lies wherever those entities have business establishments. See 19 C. J. S., Corporations §717(d), p. 374, n. 30 (1990) (under typical state venue statutes, “[v]enue in action against domestic corporation can be laid in any county where corporation maintains branch office”). By contrast, the Court of Appeals’ decision in the instant case severely constricts national banks’ access to diversity jurisdiction as compared to the access available to corporations generally. For purposes of diversity, a corporation surely is not deemed a citizen of every State in which it maintains a business establishment. See Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 290, 295–296 (1886). Rather, under 28 U. S. C. §1332(c)(1), a corporation is “deemed to be a citizen” only of “any State by which it has been incorporated” and “of the State where it has its principal place of business.” Accordingly, while corporations ordinarily rank as citizens of at most 2 States, Wachovia, under the Court of Appeals’ novel citizenship rule, would be a citizen of 16 States. See FDIC Institution Directory, available at http://www2.fdic.gov/idasp/ main.asp.[Footnote 9] Bougas does not call for this anomalous result. V To summarize, “located,” as its appearances in the banking laws reveal, see supra, at 8–9, is a chameleon word; its meaning depends on the context in and purpose for which it is used. In the context of venue, “located” may refer to multiple places, for a venue prescription, e.g., the current and former 12 U. S. C. §94, presupposes subject-matter jurisdiction and simply delineates where within a given judicial system a case may be maintained. See, e.g., 28 U. S. C. §1391(c) (for venue purposes, “a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced”). In contrast, in §1348, “located” appears in a prescription governing not venue but federal-court subject-matter jurisdiction. Concerning access to the federal court system, §1348 deems national banks “citizens of the States in which they are respectively located.” There is no reason to suppose Congress used those words to effect a radical departure from the norm. An individual who resides in more than one State is regarded, for purposes of federal subject-matter (diversity) jurisdiction, as a citizen of but one State. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 828 (1989) (an individual is deemed a citizen of the State of her domicil); Williamson v. Osenton, 232 U. S. 619, 625 (1914) (domicil is the “technically preeminent headquarters” of a person; “[i]n its nature it is one”). Similarly, a corporation’s citizenship derives, for diversity jurisdiction purposes, from its State of incorporation and principal place of business. §1332(c)(1). It is not deemed a citizen of every State in which it conducts business or is otherwise amenable to personal jurisdiction. Reading §1348 in this context, one would sensibly “locate” a national bank for the very same purpose, i.e., qualification for diversity jurisdiction, in the State designated in its articles of association as its main office. Treating venue and subject-matter jurisdiction prescriptions as in pari materia, 388 F. 3d, at 422–423, the Court of Appeals majority overlooked the discrete offices of those concepts. See supra, at 11–12; cf. Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) (“The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.”). The resulting Fourth Circuit decision rendered national banks singularly disfavored corporate bodies with regard to their access to federal courts. The language of §1348 does not mandate that incongruous outcome, nor does this Court’s precedent. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. Footnote 1 A national bank, on formation, must designate, in its organization certificate and articles of association, the “place where its operations of discount and deposit are to be carried on.” 12 U. S. C. §22 (Second); see §21; Office of the Comptroller of the Currency, Instructions—Articles of Association, Specific Requirements ¶12, available at http:// www.occ.treas.gov/corpbook/forms/articles-conv.doc (All Internet materials as visited Jan. 13, 2006, and included in Clerk of Court’s case file.) The place so designated serves as the bank’s “main office.” Changes in the location of that office are effected by amendment to the bank’s articles of association. See 12 U. S. C. §§21a, 30(b); 12 CFR §5.40(d)(2)(ii) (2005). The State in which the main office is located qualifies as the bank’s “home State” under the banking laws. 12 U. S. C. §36(g)(3)(B). Footnote 2 National banks originally lacked authority to operate branch offices. Act of Feb. 25, 1863, §11, 12 Stat. 668. In 1865, Congress enacted an exception permitting a state bank that converted to a national bank to retain its pre-existing branches. Act of Mar. 3, 1865, §7, 13 Stat. 484. Congress authorized limited branch operations in the bank’s home State in 1927 and 1933. McFadden Act (Branch Banks), 1927, §7(c), 44 Stat. 1228; Glass-Steagall Act, 1933, §23, 48 Stat. 189–190. These Acts, like the 1865 enactment, allowed interstate branching only under narrow “grandfather” provisions. McFadden Act, §7(a)–(b), 44 Stat. 1228; see Girard Bank v. Board of Governors of Fed. Reserve System, 748 F. 2d 838, 840 (CA3 1984) (observing that only two national banks had “grandfathered” interstate branches). Not until 1994 did Congress grant national banks broad authority to establish branch offices across state lines. See Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, §101, 108 Stat. 2339. See generally J. Macey, G. Miller, & R. Carnell, Banking Law and Regulation 18–19, 23, 32–33 (3d ed. 2001). Footnote 3 Wachovia unsuccessfully moved for rehearing en banc. Six judges voted to grant the rehearing petition, three voted to deny it, and four recused themselves. Thus the petition failed to garner the required majority of the Circuit’s 13 active judges. No. 03–2061 (CA4, Jan. 28, 2005), App. to Pet. for Cert. 57a–58a. Footnote 4 The term “established under” did appear in the 1882 and 1887 formulations, in both texts as synonymous with the term “organized under.” In neither measure is the word used in a locational sense. Footnote 5 Earlier, in 1888, Congress had revised the 1887 prescription by adding as a separate paragraph this caveat: “The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.” Act of Aug. 13, 1888, §4, 25 Stat. 436. Footnote 6 In full, the 1911 text stated: “The district courts shall have original jurisdiction … [o]f all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title ‘National Banks,’ Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located.” 36 Stat. 1091–1093. The first sentence of this formulation merged the 1888 caveat with text, including the word “established,” originally contained in the Act of Dec. 1, 1873, §629 (Tenth to Eleventh), 18 Stat. 111. The second sentence, including the word “located,” derives from the 1887 formulation. Footnote 7 The Court of Appeals did not overlook these nonuniform uses of the word “located” in various provisions of the National Bank Act. See 388 F. 3d 414, 425 (CA4 2004). Nevertheless, it declared that, in §1348, “located” unambiguously means “physically present.” Ibid. (internal quotation marks omitted). The court did not say what facilities other than branch offices, for example, storage sites or even automated teller machines, would suffice to establish a bank’s physical presence. Cf. Tr. of Oral Arg. 36–37 (counsel for respondents stated that an ATM, although an arguable question, probably would suffice to locate a bank in a State for §1348 purposes). Footnote 8 Context also matters in assigning meaning to the word “established.” See, e.g., Convention Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains, S. Treaty Doc. No. 107–19, Art. 5, pp. 8–9 (2002) (“For the purposes of this Convention, the term ‘permanent establishment’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on … .”). Given the character of the proceedings covered by the first paragraph of §1348, see supra, at 7, one might read “established” as referring to the bank’s main office as set forth in its articles of association. Other readings mentioned in Court of Appeals opinions are the bank’s principal place of business and the place listed in the bank’s organization certificate. See Horton v. Bank One, N. A., 387 F. 3d 426, 434 (CA5 2004); Firstar Bank, N. A. v. Faul, 253 F. 3d 982, 992 (CA7 2001). Because this issue is not presented by the parties or necessary to today’s decision, we express no opinion on it. Cf. ibid. Footnote 9 To achieve complete parity with state banks and other state-incorporated entities, a national banking association would have to be deemed a citizen of both the State of its main office and the State of its principal place of business. See Horton, 387 F. 3d, at 431, and n. 26; Firstar Bank, N. A., 253 F. 3d, at 993–994. Congress has prescribed that a corporation “shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. §1332(c)(1) (emphasis added). The counterpart provision for national banking associations, §1348, however, does not refer to “principal place of business”; it simply deems such associations “citizens of the States in which they are respectively located.” The absence of a “principal place of business” reference in §1348 may be of scant practical significance for, in almost every case, as in this one, the location of a national bank’s main office and of its principal place of business coincide.
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546.US.95
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Kansas’ motor fuel tax applies to the receipt of fuel by off-reservation non-Indian distributors who subsequently deliver it to the gas station owned by, and located on the Reservation of, the Prairie Band Potawatomi Nation (Nation). The station is meant to accommodate reservation traffic, including patrons driving to the casino the Nation owns and operates there. Most of the station’s fuel is sold to such patrons, but some sales are made to persons living or working on the reservation. The Nation’s own tax on the station’s fuel sales generates revenue for reservation infrastructure. The Nation sued for declaratory judgment and injunctive relief from the State’s collection of its tax from distributors delivering fuel to the reservation. Granting the State summary judgment, the District Court determined that the balance of state, federal, and tribal interests tilted in favor of the State under the test set forth in White Mountain Apache Tribe v. Bracker, 448 U. S. 136. The Tenth Circuit reversed, agreeing with the Nation that the Kansas tax is an impermissible affront to its sovereignty. The court reasoned that the Nation’s fuel revenues were derived from value generated primarily on its reservation—i.e., the creation of a new fuel market by virtue of the casino—and that the Nation’s interests in taxing this reservation-created value to raise revenue for reservation infrastructure outweighed the State’s general interest in raising revenues. Held: Because Kansas’ motor fuel tax is a nondiscriminatory tax imposed on an off-reservation transaction between non-Indians, the tax is valid and poses no affront to the Nation’s sovereignty. The Bracker interest-balancing test does not apply to a tax that results from an off-reservation transaction between non-Indians. Pp. 4–18. 1. The Kansas tax is imposed on non-Indian distributors based upon their off-reservation receipt of motor fuel, not on the on-reservation sale and delivery of that fuel. Pp. 4–12. (a) Under this Court’s Indian tax immunity cases, the “who” and the “where” of a challenged tax have significant consequences. “The initial and frequently dispositive question … is who bears [a tax’s] legal incidence,” Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U. S. 450, 458 (emphasis added). Moreover, the States are categorically barred from placing a tax’s legal incidence “on a tribe or on tribal members for sales made inside Indian country” without congressional authorization. Id., at 459 (emphasis added). Even when a State imposes a tax’s legal incidence on a non-Indian seller, the tax may nonetheless be pre-empted if the transaction giving rise to tax liability occurs on the reservation and the imposition of the tax fails to satisfy the Bracker interest-balancing test. See, e.g., Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S. 160. Pp. 4–5. (b) The Court rejects the Nation’s argument that it is entitled to prevail under Chickasaw’s categorical bar because the fairest reading of the Kansas statute is that the tax’s legal incidence actually falls on the Tribe on the reservation. Under the statute, the tax’s incidence is expressly imposed on the distributor that first receives the fuel. Such “dispositive language” from the state legislature is determinative of who bears a state excise tax’s legal incidence. Chickasaw, supra, at 461. Even absent such “dispositive language,” the Court would nonetheless conclude that the tax’s legal incidence is on the distributor because Kansas law makes clear that it is the distributor, not the retailer, that is liable for the tax. The lower courts and the Kansas agency charged with administering the motor fuel tax reached the same conclusion. Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 970 P. 2d 60, distinguished. Pp. 5–8. (c) Also rejected is the Nation’s alternative argument that the Bracker test must be applied irrespective of who bears the Kansas tax’s legal incidence because the tax arises as a result of the on-reservation sale and delivery of fuel. The Nation presented a starkly different, and correct, interpretation of the statute in the Tenth Circuit, arguing that the balancing test is appropriate even though the tax’s legal incidence is imposed on the Nation’s non-Indian distributor and is triggered by the distributor’s receipt of fuel outside the reservation. The Nation’s argument here is rebutted by provisions of the Kansas statute demonstrating that the only taxable event occurs when the distributor first receives the fuel and by a final determination by the State reaching the same conclusion. The Nation’s theory that the existence of statutory deductions for certain postreceipt transactions make it impossible for a distributor to calculate its ultimate tax liability without knowing whether, where, and to whom the fuel is ultimately sold or delivered suffers from several conceptual defects. For example, availability of the deductions does not change the nature of the taxable event, the distributor’s receipt of the fuel. Pp. 8–12. 2. The Tenth Circuit erred in concluding that the Kansas tax is nevertheless subject to Bracker’s test. That test applies only where “a State asserts authority over the conduct of non-Indians engaging in activity on the reservation.” 448 U. S., at 144. It has never been applied where, as here, a state tax imposed on a non-Indian arises from a transaction occurring off the reservation. The Court’s Indian tax immunity cases counsel against such an application. Pp. 12–18. (a) Limiting the Bracker test exclusively to on-reservation transactions between a nontribal entity and a tribe or tribal member is consistent with this Court’s unique Indian tax immunity jurisprudence, which relies “heavily on the doctrine of tribal sovereignty [giving] state law ‘no role to play’ within a tribe’s territorial boundaries,” Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U. S. 114, 123–124. The Court has taken an altogether different course, by contrast, when a State asserts its taxing authority outside of Indian Country. E.g., Chickasaw, 515 U. S. 450. In such cases, “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148–149. If a State may apply a nondiscriminatory tax to Indians who have gone beyond the reservation’s boundaries, it may also apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction. In these circumstances, Bracker is inapplicable. Cf. Arizona Dept. of Revenue v. Blaze Constr. Co., 526 U. S. 32, 37. The application of the test here is also inconsistent with the Court’s efforts to establish “bright line standard[s]” in the tax administration context. Ibid. The Nation is not entitled to interest balancing by virtue of its claim that the Kansas tax interferes with the Nation’s own motor fuel tax. This is ultimately a complaint about the state tax’s downstream economic consequences. The Nation cannot invalidate that tax by complaining about a decrease in its revenues. See, e.g., Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 156. Nor would the Court’s analysis change if legal significance were accorded the Nation’s decision to label a portion of its gas station’s revenues as tax proceeds. See id., at 184, n. 9. Pp. 12–17. (b) This Court rejects the Nation’s contention that the Kansas tax is invalid notwithstanding the Bracker test’s inapplicability because it exempts from taxation fuel sold or delivered to state and federal sovereigns and is therefore impermissibly discriminatory. The Nation is not similarly situated to the exempted sovereigns. While Kansas’ tax pays for roads and bridges on the Nation’s reservation, including the main highway used by casino patrons, Kansas offers no such services to the several States or the Federal Government. Moreover, to the extent Kansas retailers bear the tax’s cost, that burden applies equally to all retailers within the State regardless of whether they are located on a reservation. P. 18. 379 F. 3d 979, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, O’Connor, Scalia, Souter, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Kennedy, J., joined.
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The State of Kansas imposes a tax on the receipt of motor fuel by fuel distributors within its boundaries. Kansas applies that tax to motor fuel received by non-Indian fuel distributors who subsequently deliver that fuel to a gas station owned by, and located on, the Reservation of the Prairie Band Potawatomi Nation (Nation). The Nation maintains that this application of the Kansas motor fuel tax is an impermissible affront to its sovereignty. The Court of Appeals agreed, holding that the application of the Kansas tax to fuel received by a non-Indian distributor, but subsequently delivered to the Nation, was invalid under the interest-balancing test set forth in White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980). But the Bracker interest-balancing test applies only where “a State asserts authority over the conduct of non-Indians engaging in activity on the reservation.” Id., at 144. It does not apply where, as here, a state tax is imposed on a non-Indian and arises as a result of a transaction that occurs off the reservation. Accordingly, we reverse. I The Nation is a federally recognized Indian Tribe whose reservation is on United States trust land in Jackson County, Kansas. The Nation owns and operates a casino on its reservation. In order to accommodate casino patrons and other reservation-related traffic, the Nation constructed, and now owns and operates, a gas station on its reservation next to the casino. Seventy-three percent of the station’s fuel sales are made to casino patrons, while 11 percent of the station’s fuel sales are made to persons who live or work on the reservation. The Nation purchases fuel for its gas station from non-Indian distributors located off its reservation. Those distributors pay a state fuel tax on their initial receipt of motor fuel, Kan. Stat. Ann. §79–3408 (2003 Cum. Supp.),[Footnote 1] and pass along the cost of that tax to their customers, including the Nation.[Footnote 2] The Nation sells its fuel within 2 cents per gallon of the prevailing market price. Prairie Band Potawatomi Nation v. Richards, 379 F. 3d 979, 982 (CA10 2004). It does so notwithstanding the distributor’s decision to pass along the cost of the State’s fuel tax to the Nation, and the Nation’s decision to impose its own tax on the station’s fuel sales in the amount of 16 cents per gallon of gasoline and 18 cents per gallon of diesel (increased to 20 cents for gasoline and 22 cents for diesel in January 2003). Id., at 982. The Nation’s fuel tax generates approximately $300,000 annually, funds that the Nation uses for “ ‘constructing and maintaining roads, bridges and rights-of-way located on or near the Reservation,’ ” including the access road between the state-funded highway and the casino. Ibid. The Nation brought an action in Federal District Court for declaratory judgment and injunctive relief from the State’s collection of motor fuel tax from distributors who deliver fuel to the reservation. The District Court granted summary judgment in favor of the State. Applying the Bracker interest-balancing test, it determined that the balance of state, federal, and tribal interests tilted in favor of the State. The court reached this determination because “it is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors,” Prairie Band Potawatomi Nation v. Richards, 241 F. Supp. 2d 1295, 1311 (Kan. 2003), and because the ultimate purchasers of the fuel, non-Indian casino patrons, receive the bulk of their governmental services from the State, id., at 1309. The court held that the State’s tax did not interfere with the Nation’s right of self-government, adding that “a tribe cannot oust a state from any power to tax on-reservation purchases by nonmembers of the tribe by simply imposing its own tax on the transactions or by otherwise earning its revenues from the tribal business.” Id., at 1311. The Court of Appeals for the Tenth Circuit reversed. 379 F. 3d 979 (2004). It determined that, under Bracker, the balance of state, federal, and tribal interests favored the Tribe. The Tenth Circuit reasoned that the Nation’s fuel revenues were “derived from value generated primarily on its reservation,” 379 F. 3d, at 984—namely, the creation of a new fuel market by virtue of the presence of the casino—and that the Nation’s interests in taxing this reservation-created value to raise revenue for reservation infrastructure outweighed the State’s “general interest in raising revenues,” id., at 986. We granted certiorari, 543 U. S. 1186 (2005), and now reverse. II Although we granted certiorari to determine whether Kansas may tax a non-Indian distributor’s off-reservation receipt of fuel without being subject to the Bracker interest-balancing test, Pet. for Cert. i, the Nation maintains that Kansas’ “tax is imposed not on the off-reservation receipt of fuel, but on its on-reservation sale and delivery,” Brief for Respondent 11 (emphasis in original). As the Nation recognizes, under our Indian tax immunity cases, the “who” and the “where” of the challenged tax have significant consequences. We have determined that “[t]he initial and frequently dispositive question in Indian tax cases . . . is who bears the legal incidence of [the] tax,” Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U. S. 450, 458 (1995) (emphasis added), and that the States are categorically barred from placing the legal incidence of an excise tax “on a tribe or on tribal members for sales made inside Indian country” without congressional authorization, id., at 459 (emphasis added). We have further determined that, even when a State imposes the legal incidence of its tax on a non-Indian seller, the tax may nonetheless be pre-empted if the transaction giving rise to tax liability occurs on the reservation and the imposition of the tax fails to satisfy the Bracker interest-balancing test. See 448 U. S. 136 (holding that state taxes imposed on on-reservation logging and hauling operations by non-Indian contractor are invalid under the interest-balancing test); cf. Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S. 160 (1980) (holding that the Indian trader statutes pre-empted Arizona’s tax on a non-Indian seller’s on-reservation sales). The Nation maintains that it is entitled to prevail under the categorical bar articulated in Chickasaw because “[t]he fairest reading of the statute is that the legal incidence of the tax actually falls on the Tribe [on the reservation].” Brief for Respondent 17, n. 5. The Nation alternatively maintains it is entitled to prevail even if the legal incidence of the tax is on the non-Indian distributor because, according to the Nation, the tax arises out of a distributor’s on-reservation transaction with the Tribe and is therefore subject to the Bracker balancing test. Brief for Respondent 15. We address the “who” and the “where” of Kansas’ motor fuel tax in turn. A Kansas law specifies that “the incidence of [the motor fuel] tax is imposed on the distributor of the first receipt of the motor fuel.” Kan. Stat. Ann. §79–3408(c) (2003 Cum. Supp.). We have suggested that such “dispositive language” from the state legislature is determinative of who bears the legal incidence of a state excise tax. Chickasaw, supra, at 461. But even if the state legislature had not employed such “dispositive language,” thereby requiring us instead to look to a “fair interpretation of the taxing statute as written and applied,” California Bd. of Equalization v. Chemehuevi Tribe, 474 U. S. 9, 11 (1985) (per curiam), we would nonetheless conclude that the legal incidence of the tax is on the distributor. Kansas law makes clear that it is the distributor, rather than the retailer, that is liable to pay the motor fuel tax. Section 79–3410(a) (1997) provides, in relevant part, that “[e]very distributor . . . shall compute and shall pay to the director . . . the amount of [motor fuel] taxes due to the state.” While the distributors are “entitled” to pass along the cost of the tax to downstream purchasers, see §79–3409 (2003 Cum. Supp.), they are not required to do so. In sum, the legal incidence of the Kansas motor fuel tax is on the distributor. The lower courts reached the same conclusion. 379 F. 3d, at 982 (“The Kansas legislature structured the tax so that its legal incidence is placed on non-Indian distributors”); 241 F. Supp. 2d, at 1311 (“[I]t is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors”); see also Sac and Fox Nation of Missouri v. Pierce, 213 F. 3d 566, 578 (CA10 2000) (“[T]he legal incidence of the [Kansas] tax law as presently written falls on the fuel distributors rather than on the Tribes”); Winnebago Tribe of Nebraska v. Kline, 297 F. Supp. 2d 1291, 1294 (Kan. 2004) (“Under the Kansas statutory scheme, the legal incidence of the state’s fuel tax falls on the ‘distributor of first receipt’ of such fuel”); Sac and Fox Nation of Missouri v. LaFaver, 31 F. Supp. 2d 1298, 1307 (Kan. 1998) (“[T]he statutes are extremely clear in providing that the tax in question is imposed upon the distributor”). And the Kansas Department of Revenue, the state agency charged with administering the motor fuel tax, has concluded likewise. See Letter from David J. Heinemann, Office of Administrative Appeals, to Mark Burghart, Written Final Determination in Request for Informal Conference for Reconsideration of Agency Action, Davies Oil Co., Inc., Docket No. 01–970 (Jan. 3, 2002) (hereinafter Kansas Dept. of Revenue Letter) (“The legal incidence of the Kansas fuel tax rests with Davies, the distributor, who is up-stream from Nation, the retailer”). The United States, as amicus, contends that this conclusion is foreclosed by the Kansas Supreme Court’s decision in Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 970 P. 2d 60 (1998). The United States reads Kaul as holding that the legal incidence of Kansas’ motor fuel tax rests on the Indian retailers, rather than on the non-Indian distributors. And, under the United States’ view, so long as the Kansas Supreme Court’s “ ‘definitive determination as to the operating incidence’ ” of its fuel tax is “ ‘consistent with the statute’s reasonable interpretation,’ ” it should be “ ‘deemed conclusive.’ ” Brief for United States as Amicus Curiae 10 (quoting Gurley v. Rhoden, 421 U. S. 200, 208 (1975)). We disagree with the United States’ interpretation of Kaul. In Kaul, two members of the Citizen Band Potawatomi Tribe of Oklahoma sought to enjoin the enforcement of Kansas’ fuel tax on fuel delivered to their gas station located on the Prairie Band Potawatomi Tribe of Kansas’ Reservation. The Kansas Supreme Court determined that the station owners had standing to challenge the tax because the statute provided that the distributor was entitled to “ ‘charge and collect such tax . . . as a part of the selling price.’ ” Kaul, supra, at 474, 970 P. 2d, at 67 (quoting Kan. Stat. Ann. §79–3409 (1995); emphasis deleted). The court determined that the station owners were not entitled to an injunction, however, because they were not members of a Kansas Tribe and thus there had “been no showing by Retailers that payment of fuel tax to Kansas interferes with the self-government of a Kansas tribe or a Kansas tribal member.” 266 Kan., at 464, 970 P. 2d, at 69. The court then noted that “the legal incidence of the tax on motor fuel rests on nontribal members and does not affect the Potawatomi Indian reservation within the state of Kansas.” Ibid. Kaul does not foreclose our determination that the distributor bears the legal incidence of the Kansas motor fuel tax. As an initial matter, it is unclear whether the court’s reference to “nontribal members” is a reference to the non-tribal-member retailers or the non-tribal-member distributors. At the very least, Kaul’s imprecise language cannot be characterized as a definitive determination. Moreover, the 1998 amendments to the Kansas fuel provisions, including the amendment to §79–3408(c) that provides that “the incidence of this tax is imposed on the distributor,” were not applied in Kaul. Id., at 473, 970 P. 2d, at 66 (identifying provisions that were repealed in 1998 as being “in effect during the period relevant to this case”); id., at 474, 970 P. 2d, at 67 (noting that a “critical statute” to its holding was the 1995 version of §79–3409, which was amended in 1998). Accordingly, Kaul did not speak authoritatively on the provisions before us today. B The Nation maintains that we must apply the Bracker interest-balancing test, irrespective of the identity of the taxpayer (i.e., the party bearing the legal incidence), because the Kansas fuel tax arises as a result of the on-reservation sale and delivery of the motor fuel. See Brief for Respondent 15. Notably, however, the Nation presented a starkly different interpretation of the statute in the proceedings before the Court of Appeals, arguing that “[t]he balancing test is appropriate even though the legal incidence of the tax is imposed on the Nation’s non-Indian distributor and is triggered by the distributor’s receipt of fuel outside the reservation.” Appellant’s Reply Brief in No. 03–3218 (CA10), p. 3 (emphasis added); see also 241 F. Supp. 2d, at 1311 (District Court observing that “it is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors”). A “fair interpretation of the taxing statute as written and applied,” Chemehuevi Tribe, 474 U. S., at 11, confirms that the Nation’s interpretation of the statute before the Court of Appeals was correct. As written, the Kansas fuel tax provisions state that “the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once. Such tax shall be computed on all motor-vehicle fuels or special fuels received by each distributor, manufacturer or importer in this state and paid in the manner provided for herein . . . .” Kan. Stat. Ann. §79–3408(c) (2003 Cum. Supp.). Under this provision, the distributor who initially receives the motor fuel is liable for payment of the fuel tax, and the distributor’s tax liability is determined by calculating the amount of fuel received by the distributor. Section 79–3410(a) (1997) confirms that it is the distributor’s off-reservation receipt of the motor fuel, and not any subsequent event, that establishes tax liability. That section provides: “[E]very distributor, manufacturer, importer, exporter or retailer of motor-vehicle fuels or special fuels, on or before the 25th day of each month, shall render to the director . . . a report certified to be true and correct showing the number of gallons of motor-vehicle fuels or special fuels received by such distributor, manufacturer, importer, exporter or retailer during the preceding calendar month . . . . Every distributor, manufacturer or importer within the time herein fixed for the rendering of such reports, shall compute and shall pay to the director at the director's office the amount of taxes due to the state on all motor-vehicle fuels or special fuels received by such distributor, manufacturer or importer during the preceding calendar month.” Thus, Kansas law expressly provides that a distributor’s monthly tax obligations are determined by the amount of fuel received by the distributor during the preceding month. See Kline, 297 F. Supp. 2d, at 1294 (“The distributor must compute and remit the tax each month for the fuel received by the distributor in the State of Kansas”). The Nation disagrees. It contends that what is taxed is not the distributors’ (off-reservation) receipt of the fuel, but rather the distributors’ use, sale, or delivery of the motor fuel—in this case, the distributors’ (on-reservation) sale or delivery to the Nation. The Nation grounds support for this proposition in §79–3408(a) (2003 Cum. Supp.). That section provides that “[a] tax . . . is hereby imposed on the use, sale or delivery of all motor vehicle fuels or special fuels which are used, sold or delivered in this state for any purpose whatsoever.” But this section cannot be read in isolation. If it were, it would permit Kansas to tax the same fuel multiple times—namely, every time fuel is sold, delivered, or used. Section 79–3408(a) must be read in conjunction with subsection (c), which specifies that “the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once.” (Emphasis added.) The identity of the single, taxable event is revealed in the very next sentence of subsection (c), which provides that “[s]uch tax shall be computed on all . . . fuels received by each distributor.” (Emphasis added.) In short, the “use, sale or delivery” that triggers tax liability is the sale or delivery of the fuel to the distributor. The Kansas Department of Revenue has issued a final determination reaching the same conclusion. See Kansas Dept. of Revenue Letter (“[P]ursuant to the Kansas Motor Fuel Tax Act … the state fuel tax was imposed on Davies, a distributor, when Davies first received the fuel at its business, a site located off of Nation’s reservation” (emphasis added)). The Nation claims further support for its interpretation of the statute in §79–3408(d) (2003 Cum. Supp.). Section 79–3408(d) permits distributors to obtain deductions from the Kansas motor fuel tax for certain postreceipt transactions, such as sale or delivery of fuel for export from the State and sale or delivery of fuel to the United States. §§79–3408(d)(1)–(2). The Nation argues that these exemptions make it impossible for a distributor to calculate its “ultimate tax liability” without knowing “whether, where, and to whom the fuel is ultimately sold or delivered.” Brief for Respondent 15. The Nation infers from these provisions that the taxable event is actually the distributors’ postreceipt delivery of fuel to retailers such as the Nation, rather than the distributors’ initial receipt of the fuel. The Nation’s theory suffers from a number of conceptual defects. First, under Kansas law, a distributor must pay the tax even for fuel that sits in its inventory—fuel that is not (or at least has not yet been) used, sold, or delivered by the distributor.[Footnote 3] But the Nation’s interpretation presumes that the tax is owed only on a distributor’s postreceipt use, sale, or delivery of fuel. As this interpretation cannot be reconciled with the manner in which the Kansas motor fuel tax is actually applied, it must be rejected.[Footnote 4] Second, the availability of tax deductions does not change the nature of the taxable event, here the distributor’s receipt of the fuel. By analogy, an individual federal income taxpayer may reduce his tax liability by paying home mortgage interest. But that entitlement does not render the taxable event anything other than the receipt of income by the taxpayer. See 26 U. S. C. §1 (2000 ed. and Supp. II), §163(h) (2000 ed.); cf. North American Oil Consol. v. Burnet, 286 U. S. 417, 424 (1932) (federal income tax liability arises when “a taxpayer … has received income”). Finally, the Nation contends that its interpretation of the statute is supported by Kan. Stat. Ann. §79–3417 (1997), which permits a refund—in certain circumstances—for destroyed fuel. However, the Nation’s interpretation is actually foreclosed by that section. Section 79–3417 entitles a distributor to a “refund from the state of the amount of motor-vehicle fuels or special fuels tax paid on any . . . fuels of 100 gallons or more in quantity, which are lost or destroyed at any one time while such distributor is the owner thereof,” provided the distributor supplies the required notification and documentation to the State. This section illustrates that a distributor pays taxes for fuel in its possession that it has not delivered or sold, and is only entitled to the refund described in this section for tax it has already paid on fuel that is subsequently destroyed. While this section does not specify the event that gives rise to the distributor’s tax liability, it forecloses the Nation’s contention that such liability does not arise until fuel is sold or delivered to a nonexempt entity. III Although Kansas’ fuel tax is imposed on non-Indian distributors based upon those distributors’ off-reservation receipt of motor fuel, the Tenth Circuit concluded that the tax was nevertheless still subject to the interest-balancing test this Court set forth in Bracker, 448 U. S. 136. As Bracker itself explained, however, we formulated the balancing test to address the “difficult questio[n]” that arises when “a State asserts authority over the conduct of non-Indians engaging in activity on the reservation.” Id., at 144–145 (emphasis added). The Bracker interest-balancing test has never been applied where, as here, the State asserts its taxing authority over non-Indians off the reservation. And although we have never addressed this precise issue, our Indian tax immunity cases counsel against such an application. A We have applied the balancing test articulated in Bracker only where “the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members,” Arizona Dept. of Revenue v. Blaze Constr. Co., 526 U. S. 32, 37 (1999), on the reservation. See Bracker, supra (motor carrier license and use fuel taxes imposed on on-reservation logging and hauling operations by non-Indian contractor); Department of Taxation and Finance of N. Y. v. Milhelm Attea & Bros., 512 U. S. 61 (1994) (various taxes imposed on non-Indian purchasers of goods retailed on-reservation); Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163 (1989) (state severance tax imposed on non-Indian lessee’s on-reservation production of oil and gas); Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U. S. 832 (1982) (state gross receipts tax imposed on private contractor’s proceeds from the construction of a school on the reservation); Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980) (cigarette and sales taxes imposed on on-reservation purchases by nonmembers); Central Machinery Co., 448 U. S. 160 (tax imposed on on-reservation sale of farm machinery to Tribe). Similarly, the cases identified in Bracker as supportive of the balancing test were exclusively concerned with the on-reservation conduct of non-Indians. See Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965) (gross proceeds tax imposed on non-Indian retailer on Navajo Indian Reservation); Thomas v. Gay, 169 U. S. 264 (1898) (state property tax imposed on cattle owned by non-Indian lessees of tribal land); Williams v. Lee, 358 U. S. 217 (1959) (holding the state courts lacked jurisdiction over dispute between non-Indian, on-reservation retailer and Indian debtors).[Footnote 5] Limiting the interest-balancing test exclusively to on-reservation transactions between a nontribal entity and a tribe or tribal member is consistent with our unique Indian tax immunity jurisprudence. We have explained that this jurisprudence relies “heavily on the doctrine of tribal sovereignty . . . which historically gave state law ‘no role to play’ within a tribe’s territorial boundaries.” Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U. S. 114, 123–124 (1993) (quoting McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 168 (1973)). We have further explained that the doctrine of tribal sovereignty, which has a “significant geographical component,” Bracker, supra, at 151, requires us to “revers[e]” the “ ‘general rule’ ” that “ ‘exemptions from tax laws should . . . be clearly expressed.’ ” Sac and Fox, supra, at 124 (quoting McClanahan, supra, at 176). And we have determined that the geographical component of tribal sovereignty “ ‘provide[s] a backdrop against which the applicable treaties and federal statutes must be read.’ ” Sac and Fox, supra, at 124 (quoting McClanahan, supra, at 172). Indeed, the particularized inquiry we set forth in Bracker relied specifically on that backdrop. See 448 U. S., at 144–145 (noting that where “a State asserts authority over the conduct of non-Indians engaging in activity on the reservation . . . we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence” (emphasis added)). We have taken an altogether different course, by contrast, when a State asserts its taxing authority outside of Indian Country. Without applying the interest-balancing test, we have permitted the taxation of the gross receipts of an off-reservation, Indian-owned ski resort, Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), and the taxation of income earned by Indians working on-reservation but living off-reservation, Chickasaw, 515 U. S. 450. In these cases, we have concluded that “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache, supra, at 148–149; Chickasaw, supra, at 465 (quoting Mescalero Apache, supra, at 148–149). If a State may apply a nondiscriminatory tax to Indians who have gone beyond the boundaries of the reservation, then it follows that it may apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction. In these circumstances, the interest-balancing test set forth in Bracker is inapplicable. Cf. Blaze Constr., 526 U. S., at 37 (declining to apply the Bracker interest-balancing test “where a State seeks to tax a transaction [on-reservation] between the Federal Government and its non-Indian private contractor”). The application of the interest-balancing test to the Kansas motor fuel tax is not only inconsistent with the special geographic sovereignty concerns that gave rise to that test, but also with our efforts to establish “bright-line standard[s]” in the context of tax administration. Ibid. (“The need to avoid litigation and to ensure efficient tax administration counsels in favor of a bright-line standard for taxation of federal contracts, regardless of whether the contracted-for activity takes place on Indian reservations”); cf. Chickasaw, supra, at 460 (noting that the legal incidence test “ ‘provide[s] a reasonably bright-line standard’ ”); County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 267–268 (1992). Indeed, we have recognized that the Bracker interest-balancing test “only cloud[s]” our efforts to establish such standards. Blaze Constr., supra, at 37. Under the Nation’s view, however, any off-reservation tax imposed on the manufacture or sale of any good imported by the Nation or one of its members would be subject to interest balancing. Such an expansion of the application of the Bracker test is not supported by our cases. Nor is the Nation entitled to interest balancing by virtue of its claim that the Kansas motor fuel tax interferes with its own motor fuel tax. As an initial matter, this is ultimately a complaint about the downstream economic consequences of the Kansas tax. As the owner of the station, the Nation will keep every dollar it collects above its operating costs. Given that the Nation sells gas at prevailing market rates, its decision to impose a tax should have no effect on its net revenues from the operation of the station; it should not matter whether those revenues are labeled “profits” or “tax proceeds.” The Nation merely seeks to increase those revenues by purchasing untaxed fuel. But the Nation cannot invalidate the Kansas tax by complaining about a decrease in revenues. See Colville, 447 U. S., at 156 (“Washington does not infringe the right of reservation Indians to ‘make their own laws and be ruled by them,’ Williams v. Lee, 358 U. S. 217, 220 (1959), merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving”). Nor would our analysis change if we accorded legal significance to the Nation’s decision to label a portion of the station’s revenues as tax proceeds. See id., at 184, n. 9 (Rehnquist, J., concurring in part, concuring in result in part, and dissenting in part) (“When two sovereigns have legitimate authority to tax the same transaction, exercise of that authority by one sovereign does not oust the jurisdiction of the other. If it were otherwise, we would not be obligated to pay federal as well as state taxes on our income or gasoline purchases. Economic burdens on the competing sovereign . . . do not alter the concurrent nature of the taxing authority”).[Footnote 6] B Finally, the Nation contends that the Kansas motor fuel tax is invalid notwithstanding the inapplicability of the interest-balancing test, because it “exempts from taxation fuel sold or delivered to all other sovereigns,” and is therefore impermissibly discriminatory. Brief for Respondent 17–20 (emphasis deleted); Kan. Stat. Ann. §§79–3408(d)(1)–(2) (2003 Cum. Supp.). But the Nation is not similarly situated to the sovereigns exempted from the Kansas fuel tax. While Kansas uses the proceeds from its fuel tax to pay for a significant portion of the costs of maintaining the roads and bridges on the Nation’s reservation, including the main highway used by the Nation’s casino patrons, Kansas offers no such services to the several States or the Federal Government. Moreover, to the extent Kansas fuel retailers bear the cost of the fuel tax, that burden falls equally upon all retailers within the State regardless of whether those retailers are located on an Indian reservation. Accordingly, the Kansas motor fuel tax is not impermissibly discriminatory. * * * For the foregoing reasons, we hold that the Kansas motor fuel tax is a nondiscriminatory tax imposed on an off-reservation transaction between non-Indians. Accordingly, the tax is valid and poses no affront to the Nation’s sovereignty. The judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 The Kansas Legislature recently amended the fuel tax statute. 2005 Kan. Sess. Laws ch. 46. The text of the sections to which we refer remains the same, although the subsection numbers have changed. For consistency, our subsection references are to the 2003 version applied by the lower courts and cited by the parties. Footnote 2 The record does not clearly establish whether the distributor passed along the cost of the tax to the Nation’s gas station. At oral argument, petitioner acknowledged that the record was unclear, but represented that the distributor was in fact passing along the cost of the tax to the Nation. Footnote 3 This understanding of the application of the Kansas fuel tax is confirmed by the form that fuel distributors are required to fill out each month pursuant to Kan. Stat. Ann. §79–3410 (1997). See Kansas Form MF–52, available at http://www.ksrevenue.org/pdf/forms/mf52.pdf (as visited Nov. 21, 2005, and available in Clerk of Court’s case file). The form instructs distributors to enter in line 1 “the total net gallons of gasoline, gasohol and special fuel received or imported” during the preceding month. Id., at 2. The distributors may then “[e]nter the deductions that apply to your business” in lines 2(a)-to-(e) for the preceding month. Those deductions include “[n]et gallons of fuel exported from Kansas,” “[n]et gallons of fuel sold to the U. S. Government,” “[n]et gallons of fuel sold for aviation purposes,” and “[n]et gallons of dyed diesel fuel received for the month,” the very deductions described in §79–3408(d), ibid. (emphasis added). The distributor’s tax liability is then calculated by subtracting the total deductions from the total fuel received, and applying the 2.5 percent handling allowance to the difference. Thus, the event that generates a distributor’s tax liability is its receipt of fuel. And the distributor must pay tax on that fuel even if it is not subsequently delivered or sold. While a distributor may decrease its tax liability by engaging in transactions that entitle it to deductions, such as by selling or delivering fuel to an exempt entity like the United States, its tax liability is unaffected by sales or deliveries to nonexempt entities like the Nation. Footnote 4 Indeed, the dissent acknowledges that tax is owed on fuel a distributor receives and holds in inventory—and thus implicitly concedes that the distributors’ off-reservation receipt of motor fuel is the event that gives rise to tax liability. See post, at 5 (opinion of Ginsburg, J.). While the dissent contends that such tax is ultimately “effectively offset” by a subsequent delivery of the inventoried fuel, ibid., the dissent does not explain the meaning of this opaque contention. A distributor’s subsequent delivery of fuel to the Nation or any other fuel retailer in Kansas has no effect on tax that it has already paid in a preceding month. Indeed, the distributor does not report delivery to retailers on its monthly tax return. See Kansas Form MF–52. And a distributor must pay the tax even if the fuel is never delivered. Footnote 5 Our recent discussion in Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U. S. 450 (1995), regarding the application of the interest-balancing test to motor fuel taxes is not to the contrary. In Chickasaw, we noted in dicta that, “if the legal incidence of the tax rests on non-Indians, no categorical bar prevents enforcement of the tax; if the balance of federal, state, and tribal interests favors the State, and federal law is not to the contrary, the state may impose its levy, and may place on a tribe or tribal members ‘minimal burdens’ in collecting the toll.” Id., at 459 (citation omitted). Chickasaw did not purport to expand the applicability of White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980), to an off-reservation tax on non-Indians. Indeed, the quoted sentence reveals that Chickasaw discussed the applicability of the interest-balancing test in the context of a tax that is collected by the tribe—a tax that necessarily arises from on-reservation conduct. Moreover, in purporting to craft a “ ‘bright-line standard’ ” in that case, we noted that Oklahoma “generally is free” to impose the legal incidence of its motor fuel tax on the consumer—who purchases fuel on the reservation—and then require the Indian retailers to “ ‘collect and remit the levy.’ ” 515 U. S., at 460. If Oklahoma would have been free to impose the legal incidence of its fuel tax downstream from the Indian retailers, then Kansas should be equally free to impose the legal incidence of its fuel tax upstream from Indian retailers notwithstanding the applicability of the interest-balancing test. Indeed, the Chickasaw dicta should apply a fortiori here; the upstream approach is less burdensome on the Tribe because it does not include the collecting and remitting requirements that typically, and permissibly, accompany a consumer tax. Footnote 6 These authorities also foreclose the Nation’s contention that the Kansas motor fuel tax is invalid, irrespective of the applicability of Bracker, 448 U. S. 136, because it interferes with the Nation’s right to self government. See Brief for Respondent 45–47.
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548.US.212
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After respondent threatened his wife with a handgun, he was convicted of second-degree assault based on the jury’s finding that he had assaulted her “with a deadly weapon.” A “firearm” qualifies as a “deadly weapon” under Washington law, but nothing in the verdict form specifically required the jury to find that respondent had engaged in assault with a “firearm,” as opposed to any other kind of “deadly weapon.” Nevertheless, the state trial court applied a 3-year firearm enhancement to respondent’s sentence, rather than the 1-year enhancement that specifically applies to assault with a deadly weapon, based on the court’s own factual findings that respondent was armed with a firearm. This Court then decided Apprendi v. New Jersey, 530 U. S. 466, holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” id., at 490, and Blakely v. Washington, 542 U. S. 296, clarifying that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict,” id., at 303. Because the trial court could not have subjected respondent to a firearm enhancement based only on the jury’s finding that respondent was armed with a “deadly weapon,” the State conceded a Sixth Amendment Blakely violation before the Washington Supreme Court, but urged the court to find the Blakely error harmless. In vacating respondent’s sentence and remanding for sentencing based solely on the deadly weapon enhancement, however, the court declared Blakely error to be “structural error,” which will always invalidate a conviction under Sullivan v. Louisiana, 508 U. S. 275, 279. Held: 1. Respondent’s argument that this Court lacks power to reverse because the Washington Supreme Court’s judgment rested on adequate and independent state-law grounds is rejected. It is far from clear that respondent is correct that at the time of his conviction, state law provided no procedure for a jury to determine whether a defendant was armed with a firearm, so that it is impossible to conduct harmless-error analysis on the Blakely error in his case. The correctness of respondent’s interpretation, however, is not determinative of the question the State Supreme Court decided and on which this Court granted review, i.e., whether Blakely error can ever be deemed harmless. If respondent’s reading of Washington law is correct, that merely suggests that he will be able to demonstrate that the Blakely violation in this particular case was not harmless. See Chapman v. California, 386 U. S. 18, 24. But it does not mean that Blakely error—which is of the same nature, whether it involves a fact that state law permits to be submitted to the jury or not—is structural, or that this Court is precluded from deciding that question. Thus, the Court need not resolve this open question of Washington law. Pp. 3–4. 2. Failure to submit a sentencing factor to the jury is not “structural” error. If a criminal defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that most constitutional errors are subject to harmless-error analysis. E.g., Neder v. United States, 527 U. S. 1, 8. Only in rare cases has this Court ruled an error “structural,” thus requiring automatic reversal. In Neder, the Court held that failure to submit an element of an offense to the jury—there, the materiality of false statements as an element of the federal crimes of filing a false income tax return, mail fraud, wire fraud, and bank fraud, see id., at 20–25—is not structural, but is subject to Chapman’s harmless-error rule, id., at 7–20. This case is indistinguishable from Neder. Apprendi makes clear that “[a]ny possible distinction between an ‘element’ of a felony … and a ‘sentencing factor’ was unknown … during the years surrounding our Nation’s founding.” 530 U. S., at 478. Accordingly, the Court has treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483–484. The only difference between this case and Neder is that there the prosecution failed to prove the materiality element beyond a reasonable doubt, while here the prosecution failed to prove the “armed with a firearm” sentencing factor beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with Apprendi’s recognition that elements and sentencing factors must be treated the same. Respondent attempts unpersuasively to distinguish Neder on the ground that the jury there returned a guilty verdict on the offenses for which the defendant was sentenced, whereas here the jury returned a guilty verdict only on the offense of second-degree assault, and an affirmative answer to the sentencing question whether respondent was armed with a deadly weapon. Because Neder’s jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt than is the verdict here. See 527 U. S., at 31. Pp. 5–9. 154 Wash. 2d 156, 110 P. 3d 188, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Breyer, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined.
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Respondent Arturo Recuenco was convicted of assault in the second degree based on the jury’s finding that he assaulted his wife “with a deadly weapon.” App. 13. The trial court applied a 3-year firearm enhancement to respondent’s sentence based on its own factual findings, in violation of Blakely v. Washington, 542 U. S. 296 (2004). On appeal, the Supreme Court of Washington vacated the sentence, concluding that Blakely violations can never be harmless. We granted certiorari to review this conclusion, 546 U. S. ___ (2005), and now reverse. I On September 18, 1999, respondent fought with his wife, Amy Recuenco. After screaming at her and smashing their stove, he threatened her with a gun. Based on this incident, the State of Washington charged respondent with assault in the second degree, i.e., “intentiona[l] assault . . . with a deadly weapon, to-wit: a handgun.” App. 3. Defense counsel proposed, and the court accepted, a special verdict form that directed the jury to make a specific finding whether respondent was “armed with a deadly weapon at the time of the commission of the crime.” Id., at 13. A “firearm” qualifies as a “ ‘deadly weapon’ ” under Washington law. Wash. Rev. Code §9A.04.110(6) (2006). But nothing in the verdict form specifically required the jury to find that respondent had engaged in assault with a “firearm,” as opposed to any other kind of “deadly weapon.” The jury returned a verdict of guilty on the charge of assault in the second degree, and answered the special verdict question in the affirmative. App. 10, 13. At sentencing, the State sought the low end of the standard range sentence for assault in the second degree (three months). It also sought a mandatory 3-year enhancement because respondent was armed with a “firearm,” §9.94A.533(3)(b), rather than requesting the 1-year enhancement that would attend the jury’s finding that respondent was armed with a deadly weapon, §9.94A.533(4)(b). The trial court concluded that respondent satisfied the condition for the firearm enhancement, and accordingly imposed a total sentence of 39 months. Before the Supreme Court of Washington heard respondent’s appeal, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely, supra. In Apprendi, we held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490. In Blakely, we clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at 303 (emphasis in original). Because the trial court in this case could not have subjected respondent to a firearm enhancement based only on the jury’s finding that respondent was armed with a “deadly weapon,” the State conceded before the Supreme Court of Washington that a Sixth Amendment violation occurred under Blakely. 154 Wash. 2d 156, 162–164, 110 P. 3d 188, 191 (2005). See also Tr. of Oral Arg. 10–11. The State urged the Supreme Court of Washington to find the Blakely error harmless and, accordingly, to affirm the sentence. In Washington v. Hughes, 154 Wash. 2d 118, 110 P. 3d 192 (2005), however, decided the same day as the present case, the Supreme Court of Washington declared Blakely error to be “ ‘structural’ erro[r]” which “ ‘will always invalidate the conviction.’ ” Id., at 142, 110 P. 3d 205 (quoting Sullivan v. Louisiana, 508 U. S. 275, 279 (1993)). As a result, the court refused to apply harmless-error analysis to the Blakely error infecting respondent’s sentence. Instead, it vacated his sentence and remanded for sentencing based solely on the deadly weapon enhancement. 154 Wash. 2d, at 164, 110 P. 3d, at 192. II Before reaching the merits, we must address respondent’s argument that we are without power to reverse the judgment of the Supreme Court of Washington because that judgment rested on adequate and independent state-law grounds. Respondent claims that at the time of his conviction, Washington state law provided no procedure for a jury to determine whether a defendant was armed with a firearm. Therefore, he contends, it is impossible to conduct harmless-error analysis on the Blakely error in his case. Respondent bases his position on Hughes, in which the Supreme Court of Washington refused to “create a procedure to empanel juries on remand to find aggravating factors because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court.” 154 Wash. 2d, at 151, 110 P. 3d, at 209. Respondent contends that, likewise, the Washington Legislature provided no procedure by which a jury could decide at trial whether a defendant was armed with a firearm, as opposed to a deadly weapon. It is far from clear that respondent’s interpretation of Washington law is correct. See Washington v. Pharr, 131 Wn. App. 119, 124-125, 126 P. 3d 66, 69 (2006) (affirming the trial court’s imposition of a firearm enhancement when the jury’s special verdict reflected a finding that the defendant was armed with a firearm). In Hughes, the Supreme Court of Washington carefully avoided reaching the conclusion respondent now advocates, instead expressly recognizing that “[w]e are presented only with the question of the appropriate remedy on remand—we do not decide here whether juries may be given special verdict forms or interrogatories to determine aggravating factors at trial.” Id., at 149, 110 P. 3d, at 208. Accordingly, Hughes does not appear to foreclose the possibility that an error could be found harmless because the jury which convicted the defendant would have concluded, if given the opportunity, that a defendant was armed with a firearm. The correctness of respondent’s interpretation of Washington law, however, is not determinative of the question that the Supreme Court of Washington decided and on which we granted review, i.e., whether Blakely error can ever be deemed harmless. If respondent is correct that Washington law does not provide for a procedure by which his jury could have made a finding pertaining to his possession of a firearm, that merely suggests that respondent will be able to demonstrate that the Blakely violation in this particular case was not harmless. See Chapman v. California, 386 U. S. 18, 24 (1967). But that does not mean that Blakely error—which is of the same nature, whether it involves a fact that state law permits to be submitted to the jury or not—is structural, or that we are precluded from deciding that question. Thus, we need not resolve this open question of Washington law.[Footnote 1] III We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, “ ‘most constitutional errors can be harmless.’ ” Neder v. United States, 527 U. S. 1, 8 (1999) (quoting Arizona v. Fulminante, 499 U. S. 279, 306 (1991)). “ ‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ ” 527 U. S., at 8 (quoting Rose v. Clark, 478 U. S. 570, 579 (1986)). Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal.[Footnote 2] In such cases, the error “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, supra, at 9 (emphasis omitted). We recently considered whether an error similar to that which occurred here was structural in Neder, supra. Neder was charged with mail fraud, in violation of 18 U. S. C. §1341; wire fraud, in violation of §1343; bank fraud, in violation of §1344; and filing a false income tax return, in violation of 26 U. S. C. §7206(1). 527 U. S., at 6. At Neder’s trial, the District Court instructed the jury that it “ ‘need not consider’ ” the materiality of any false statements to convict Neder of the tax offenses or bank fraud, because materiality “ ‘is not a question for the jury to decide.’ ” Ibid. The court also failed to include materiality as an element of the offenses of mail fraud and wire fraud. Ibid. We determined that the District Court erred because under United States v. Gaudin, 515 U. S. 506 (1995), materiality is an element of the tax offense that must be found by the jury. We further determined that materiality is an element of the mail fraud, wire fraud, and bank fraud statutes, and thus must be submitted to the jury to support conviction of those crimes as well. Neder, 527 U. S., at 20. We nonetheless held that harmless-error analysis applied to these errors, because “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id., at 9. See also Schriro v. Summerlin, 542 U. S. 348, 355–356 (2004) (rejecting the claim that Ring v. Arizona, 536 U. S. 584 (2002), which applied Apprendi to hold that a jury must find the existence of aggravating factors necessary to impose the death penalty, was a “ ‘ “watershed rul[e] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding,’ ” in part because we could not “confidently say that judicial factfinding seriously diminishes accuracy”). The State and the United States urge that this case is indistinguishable from Neder. We agree. Our decision in Apprendi makes clear that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding.” 530 U. S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483–484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of “armed with a firearm” to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.[Footnote 3] Respondent attempts to distinguish Neder on the ground that, in that case, the jury returned a guilty verdict on the offense for which the defendant was sentenced. Here, in contrast, the jury returned a guilty verdict only on the offense of assault in the second degree, and an affirmative answer to the sentencing question whether respondent was armed with a deadly weapon. Accordingly, respondent argues, the trial court’s action in his case was the equivalent of a directed verdict of guilt on an offense (assault in the second degree while armed with a firearm) greater than the one for which the jury convicted him (assault in the second degree while armed with any deadly weapon). Rather than asking whether the jury would have returned the same verdict absent the error, as in Neder, respondent contends that applying harmless-error analysis here would “ ‘hypothesize a guilty verdict that [was] never in fact rendered,’ ” in violation of the jury-trial guarantee. Brief for Respondent at 27 (quoting Sullivan, 508 U. S., at 279). We find this distinction unpersuasive. Certainly, in Neder, the jury purported to have convicted the defendant of the crimes with which he was charged and for which he was sentenced. However, the jury was precluded “from making a finding on the actual element of the offense.” 527 U. S., at 10. Because Neder’s jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt of the crimes for which the defendant was sentenced than is the verdict here. See id., at 31 (Scalia, J., concurring in part and dissenting in part) (“[S]ince all crimes require proof of more than one element to establish guilt . . . it follows that trial by jury means determination by a jury that all elements were proved. The Court does not contest this”). Put another way, we concluded that the error in Neder was subject to harmless-error analysis, even though the District Court there not only failed to submit the question of materiality to the jury, but also mistakenly concluded that the jury’s verdict was a complete verdict of guilt on the charges and imposed sentence accordingly. Thus, in order to find for respondent, we would have to conclude that harmless-error analysis would apply if Washington had a crime labeled “assault in the second degree while armed with a firearm,” and the trial court erroneously instructed the jury that it was not required to find a deadly weapon or a firearm to convict, while harmless error does not apply in the present case. This result defies logic.[Footnote 4] * * * Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. Accordingly, we reverse the judgment of the Supreme Court of Washington, and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Respondent’s argument that, as a matter of state law, the Blakely v. Washington, 542 U. S. 296 (2004), error was not harmless remains open to him on remand. Footnote 2 See Neder v. United States, 527 U. S. 1, 8 (1999) (citing Johnson v. United States, 520 U. S. 461, 468 (1997), in turn citing Gideon v. Wainwright, 372 U. S. 335 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U. S. 254 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U. S. 168 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U. S. 39 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U. S. 275 (1993) (defective reasonable-doubt instruction)). Footnote 3 Respondent also attempts to evade Neder by characterizing this as a case of charging error, rather than of judicial factfinding. Brief for Respondent 16–19. Because the Supreme Court of Washington treated the error as one of the latter type, we treat it similarly. See 154 Wash. 2d 156, 159–161, 110 P. 3d 188, 189–190 (2005) (considering “whether imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm beyond a reasonable doubt violated Recuenco’s Sixth Amendment right to a jury trial as defined by Apprendi v. New Jersey, 530 U. S. 466 [(2000)], and its progeny,” and whether the Apprendi and Blakely error, if uninvited, could “be deemed harmless”). Footnote 4 The Supreme Court of Washington reached the contrary conclusion based on language from Sullivan. See Washington v. Hughes, 154 Wash. 2d 118, 144, 110 P. 3d 192, 205 (2005) (“ ‘There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate’ ” (quoting Sullivan, 508 U. S., at 279–280)). Here, as in Neder, “this strand of reasoning in Sullivan does provide support for [respondent]’s position.” 527 U. S., at 11. We recognized in Neder, however, that a broad interpretation of our language from Sullivan is inconsistent with our case law. 527 U. S., at 11–15. Because the jury in Neder, as here, failed to return a complete verdict of guilty beyond a reasonable doubt, our rejection of Neder’s proposed application of the language from Sullivan compels our rejection of this argument here.
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546.US.345
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In a warranted search of Susan and Richard Hallocks’ residence, Customs Service agents seized computer equipment, software, and disk drives. No criminal charges were ever brought, but the equipment was returned damaged, with all of the stored data lost, forcing Susan to close her computer software business. She sued the United States under the Federal Tort Claims Act, invoking the waiver of sovereign immunity, 28 U. S. C. §1346, and alleging negligence by the customs agents in executing the search. While that suit was pending, Susan also filed this action against the individual agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that the damage they caused to her computers deprived her of property in violation of the Fifth Amendment’s Due Process Clause. After the District Court dismissed the first suit on the ground that the agents’ activities fell within an exception to the Tort Claims Act’s waiver of sovereign immunity, §2680(e), the agents moved for judgment in the Bivens action. They relied on the Tort Claims Act’s judgment bar, §2676, which provides that “the judgment in an action under 1346(b) … constitute[s] a complete bar to any action … against the employee of the government whose act or omission gave rise to the claim.” The District Court denied the motion, holding that dismissal of the Tort Claims Act suit against the Government failed to raise the Act’s judgment bar. The Second Circuit affirmed, after first ruling in favor of jurisdiction under the collateral order doctrine. Under this doctrine, appellate authority to review “all final decisions of the district courts,” §1291, includes jurisdiction over “a narrow class of decisions that do not terminate the litigation,” but are sufficiently important and collateral to the merits that they should “nonetheless be treated as ‘final,’ ” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867. Held: A refusal to apply the Federal Tort Claims Act’s judgment bar is not open to collateral appeal. Pp. 4–9. (a) Three conditions are required for collateral appeal: the order must “[1] conclusively determine the disputed question; [2] resolve an important issue completely separate from the merits … , and [3] be effectively unreviewable on appeal from a final judgment.” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144. Those conditions are “stringent.” Digital Equipment, supra, at 868. Unless they are kept so, the underlying doctrine will overpower the substantial finality interests §1291 is meant to further. Pp. 3–4. (b) Among the “small class” of orders this Court has held to be collaterally appealable are those rejecting absolute immunity, Nixon v. Fitzgerald, 457 U. S. 731, 742, qualified immunity, Mitchell v. Forsyth, 472 U. S. 511, 530, and a State’s Eleventh Amendment immunity claim, Puerto Rico Aqueduct, supra, at 144–145. In each of these cases, the collaterally appealing party was vindicating or claiming a right to avoid trial, in satisfaction of the third condition: unless the order to stand trial was immediately appealable the right would be effectively lost. However, to accept the generalization that any order denying a claim of right to prevail without trial satisfies the third condition would leave §1291’s final order requirement in tatters. See Digital Equipment, supra, at 872–873. Pp. 4–5. (c) Thus, only some orders denying an asserted right to avoid the burdens of trial qualify as orders that cannot be reviewed “effectively” after a conventional final judgment. The further characteristic that merits collateral appealability is “a judgment about the value of the interests that would be lost through rigorous application of the final judgment requirement.” Digital Equipment, supra, at 878–879. In each case finding appealability, some particular value of a high order was marshaled in support of the interest in avoiding trial, e.g., honoring the separation of powers, Nixon, supra, at 749, 758, preserving the efficiency of government and the initiative of its officials, Mitchell, supra, at 526, and respecting a State’s dignitary interests, Puerto Rico Aqueduct, supra, at 146. It is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest that counts. Coopers & Lybrand v. Livesay, 437 U. S. 463, 468. Pp. 5–7. (d) The customs agents’ claim here does not serve a weighty public objective. This case must be distinguished from qualified immunity cases. The nub of such immunity is the need to induce government officials to show reasonable initiative when the relevant law is not “clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 817; a quick resolution of a qualified immunity claim is essential. There is, however, no such public interest at stake simply because the judgment bar is said to be applicable. It is the avoidance of litigation for its own sake that supports the bar, and if simply abbreviating litigation troublesome to government employees were important enough, §1291 would fade out whenever the government or an official lost in an early round. Another difference between qualified immunity and the judgment bar lies in the bar’s essential procedural element. While a qualified immunity claim is timely from the moment an official is served with a complaint, the judgment bar can be raised only after a case under the Tort Claims Act has been resolved in the Government’s favor. The closer analogy to the judgment bar is the defense of res judicata. Both are grounded in the perceived need to avoid duplicative litigation, not in a policy of freeing a defendant from any liability. But this rule of respecting a prior judgment by giving a defense against relitigation has not been thought to protect values so important that only immediate appeal can effectively vindicate them. See Digital Equipment, supra, at 873. Pp. 7–9. 387 F. 3d 147, vacated and remanded. Souter, J., delivered the opinion for a unanimous Court.
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The authority of the Courts of Appeals to review “all final decisions of the district courts,” 28 U. S. C. §1291, includes appellate jurisdiction over “a narrow class of decisions that do not terminate the litigation,” but are sufficiently important and collateral to the merits that they should “nonetheless be treated as final,” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867 (1994) (internal quotation marks omitted). The issue here is whether a refusal to apply the judgment bar of the Federal Tort Claims Act is open to collateral appeal. We hold it is not. I The complaint alleges that Susan Hallock owned a computer software business that she and her husband, Richard, operated from home. After information about Richard Hallock’s credit card was stolen and used to pay the subscription fee for a child pornography Web site, agents of the United States Customs Service, investigating the Web site, traced the payment to Richard Hallock’s card and got a warrant to search the Hallocks’ residence. With that authority, they seized the Hallocks’ computer equipment, software, and disk drives. No criminal charges were ever brought, but the Government’s actions produced a different disaster. When the computer equipment was returned, several of the disk drives were damaged, all of the stored data (including trade secrets and account files) were lost, and the Hallocks were forced out of business. In July 2002, Susan Hallock and her company brought an action against the United States under the Federal Tort Claims Act, invoking the waiver of sovereign immunity, 28 U. S. C. §1346, and alleging negligence by the customs agents in executing the search. The merits of the claim were never addressed, for the District Court granted the Government’s motion to dismiss, holding that the agents’ activities occurred in the course of detaining goods and thus fell within an exception to the Act’s waiver of sovereign immunity, §2680(e). Hallock v. United States, 253 F. Supp. 2d 361 (NDNY 2003). While the suit against the Government was still pending, Susan Hallock filed this action against the individual agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging in her complaint that the agents had damaged her computers and thus deprived her of property including business income in violation of the Due Process Clause of the Fifth Amendment. After the District Court dismissed the first suit against the Government, the agents moved for judgment in the Bivens action, citing the judgment bar of the Tort Claims Act, that “the judgment in an action under 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” §2676. The District Court denied the motion, holding that dismissal of the action against the Government under the Tort Claims Act was solely on a procedural ground, and thus failed to raise the judgment bar. Hallock v. Bonner, 281 F. Supp. 2d 425, 427 (NDNY 2003). The Court of Appeals for the Second Circuit affirmed, after first finding jurisdiction under the collateral order doctrine. Hallock v. Bonner, 387 F. 3d 147 (2004). We granted certiorari to consider the judgment bar, 545 U. S. ___ (2005), but now vacate for want of appellate jurisdiction on the part of the Court of Appeals. II The collateral order doctrine, identified with Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), is “best understood not as an exception to the ‘final decision’ rule laid down by Congress in §1291, but as a ‘practical construction’ of it.” Digital Equipment, supra, at 867 (quoting Cohen, supra, at 546). Whereas 28 U. S. C. §1291 “gives courts of appeals jurisdiction over ‘all final decisions’ of district courts” that are not directly appealable to us, Behrens v. Pelletier, 516 U. S. 299, 305 (1996), the collateral order doctrine accommodates a “small class” of rulings, not concluding the litigation, but conclusively resolving “claims of right separable from, and collateral to, rights asserted in the action,” ibid. (internal quotation marks omitted). The claims are “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, supra, at 546. The requirements for collateral order appeal have been distilled down to three conditions: that an order “ ‘[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.’ ” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993) (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978)). The conditions are “stringent,” Digital Equipment, supra, at 868 (citing Midland Asphalt Corp. v. United States, 489 U. S. 794, 799 (1989)), and unless they are kept so, the underlying doctrine will overpower the substantial finality interests §1291 is meant to further: judicial efficiency, for example, and the “sensible policy ‘of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.’ ” Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981) (quoting Cobbledick v. United States, 309 U. S. 323, 325 (1940)). Accordingly, we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope. See, e.g., Digital Equipment, 511 U. S., at 868 (“[T]he ‘narrow’ exception should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered … ” (citation omitted)). And we have meant what we have said; although the Court has been asked many times to expand the “small class” of collaterally appealable orders, we have instead kept it narrow and selective in its membership. A Prior cases mark the line between rulings within the class and those outside. On the immediately appealable side are orders rejecting absolute immunity, Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982), and qualified immunity, Mitchell v. Forsyth, 472 U. S. 511, 530 (1985). A State has the benefit of the doctrine to appeal a decision denying its claim to Eleventh Amendment immunity, Puerto Rico Aqueduct, supra, at 144–145, and a criminal defendant may collaterally appeal an adverse ruling on a defense of double jeopardy, Abney v. United States, 431 U. S. 651, 660 (1977). The examples admittedly raise the lawyer’s temptation to generalize. In each case, the collaterally appealing party was vindicating or claiming a right to avoid trial, in satisfaction of the third condition: unless the order to stand trial was immediately appealable, the right would be effectively lost. Those seeking immediate appeal therefore naturally argue that any order denying a claim of right to prevail without trial satisfies the third condition. But this generalization is too easy to be sound and, if accepted, would leave the final order requirement of §1291 in tatters. We faced this prospect in Digital Equipment, supra, an appeal from an order rescinding a settlement agreement. Petitioner asserted a “ ‘right not to stand trial’ requiring protection by way of immediate appeal,” analogizing the rescission to a denial of immunity. Id., at 869. We said no, however, lest “every right that could be enforced appropriately by pretrial dismissal [be] loosely . . . described as conferring a ‘right not to stand trial.’ ” Id., at 873. Otherwise, “almost every pretrial or trial order might be called ‘effectively unreviewable’ in the sense that relief from error can never extend to rewriting history.” Id., at 872. “Allowing immediate appeals to vindicate every such right would move §1291 aside for claims that the district court lacks personal jurisdiction, that the statute of limitations has run, that the movant has been denied his Sixth Amendment right to a speedy trial, that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case.” Id., at 873 (citations omitted). B Since only some orders denying an asserted right to avoid the burdens of trial qualify, then, as orders that cannot be reviewed “effectively” after a conventional final judgment, the cases have to be combed for some further characteristic that merits appealability under Cohen; and as Digital Equipment explained, that something further boils down to “a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement.” 511 U. S., at 878–879 (citing Van Cauwenberghe v. Biard, 486 U. S. 517, 524 (1988)). See also Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 502 (1989) (“The importance of the right asserted has always been a significant part of our collateral order doctrine” (Scalia, J., concurring)). Thus, in Nixon, supra, we stressed the “compelling public ends,” id., at 758, “rooted in … the separation of powers,” id., at 749, that would be compromised by failing to allow immediate appeal of a denial of absolute Presidential immunity, id., at 743, 752, n. 32. In explaining collateral order treatment when a qualified immunity claim was at issue in Mitchell, supra, we spoke of the threatened disruption of governmental functions, and fear of inhibiting able people from exercising discretion in public service if a full trial were threatened whenever they acted reasonably in the face of law that is not “clearly established.” Id., at 526. Puerto Rico Aqueduct, 506 U. S. 139, explained the immediate appealability of an order denying a claim of Eleventh Amendment immunity by adverting not only to the burdens of litigation but to the need to ensure vindication of a State’s dignitary interests. Id., at 146. And although the double jeopardy claim given Cohen treatment in Abney, supra, did not implicate a right to be free of all proceedings whatsoever (since prior jeopardy is essential to the defense), we described the enormous prosecutorial power of the Government to subject an individual “to embarrassment, expense and ordeal … compelling him to live in a continuing state of anxiety,” id., at 661–662 (internal quotation marks omitted); the only way to alleviate these consequences of the Government’s superior position was by collateral order appeal. In each case, some particular value of a high order was marshaled in support of the interest in avoiding trial: honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual. That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is “effectively” unreviewable if review is to be left until later. Coopers & Lybrand, 437 U. S., at 468. C Does the claim of the customs agents in this case serve such a weighty public objective that the judgment bar should be treated as an immunity demanding the protection of a collateral order appeal? One can argue, of course, that if the Bivens action goes to trial the efficiency of Government will be compromised and the officials burdened and distracted, as in the qualified immunity case: if qualified immunity gets Cohen treatment, so should the judgment bar to further litigation in the aftermath of the Government’s success under the Tort Claims Act. But the cases are different. Qualified immunity is not the law simply to save trouble for the Government and its employees; it is recognized because the burden of trial is unjustified in the face of a colorable claim that the law on point was not clear when the official took action, and the action was reasonable in light of the law as it was. The nub of qualified immunity is the need to induce officials to show reasonable initiative when the relevant law is not “clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982); see also Saucier v. Katz, 533 U. S. 194, 202 (2001); a quick resolution of a qualified immunity claim is essential. There is, however, no such public interest at stake simply because the judgment bar is said to be applicable. It is not the preservation of initiative but the avoidance of litigation for its own sake that supports the judgment bar, and if simply abbreviating litigation troublesome to Government employees were important enough for Cohen treatment, collateral order appeal would be a matter of right whenever the government lost a motion to dismiss under the Tort Claims Act, or a federal officer lost one on a Bivens action, or a state official was in that position in a case under 42 U. S. C. §1983, or Ex parte Young, 209 U. S. 123 (1908). In effect, 28 U. S. C. §1291 would fade out whenever the government or an official lost an early round that could have stopped the fight. Another difference between qualified immunity and the judgment bar lies in the bar’s essential procedural element. While a qualified immunity claim is timely from the moment an official is served with a complaint, the judgment bar can be raised only after a case under the Tort Claims Act has been resolved in the Government’s favor. If a Bivens action alone is brought, there will be no possibility of a judgment bar, nor will there be so long as a Bivens action against officials and a Tort Claims Act against the Government are pending simultaneously (as they were for a time here). In the present case, if Susan Hallock had brought her Bivens action and no other, the agents could not possibly have invoked the judgment bar in claiming a right to be free of trial. The closer analogy to the judgment bar, then, is not immunity but the defense of claim preclusion, or res judicata. Although the statutory judgment bar is arguably broader than traditional res judicata, it functions in much the same way, with both rules depending on a prior judgment as a condition precedent* and neither reflecting a policy that a defendant should be scot free of any liability. The concern behind both rules is a different one, of avoiding duplicative litigation, “multiple suits on identical entitlements or obligations between the same parties.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4402, p. 9 (2d ed. 2002) (internal quotation marks omitted). But this rule of respecting a prior judgment by giving a defense against relitigation has not been thought to protect values so great that only immediate appeal can effectively vindicate them. As we indicated in Digital Equipment, in the usual case, absent particular reasons for discretionary appeal by leave of the trial court, a defense of claim preclusion is fairly subordinated to the general policy of deferring appellate review to the moment of final judgment. 511 U. S., at 873. The judgment bar at issue in this case has no claim to greater importance than the typical defense of claim preclusion; and we hold true to form in deciding what Digital Equipment implied, that an order rejecting the defense of judgment bar under 28 U. S. C. §2676 cries for no immediate appeal of right as a collateral order. We vacate the judgment of the Court of Appeals and remand with instructions to dismiss the appeal for lack of jurisdiction. * The right to be free of double jeopardy is subject to an analogous condition, that jeopardy have attached in a prior proceeding, Monge v. California, 524 U. S. 721, 728 (1998), a characteristic that distinguishes the Fifth Amendment right from other immunities mentioned above. But, as we explained, double jeopardy deserves immunity treatment under §1291 owing to the enormous advantage of a government prosecutor who chooses to go repeatedly against an individual.
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548.US.81
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The Prison Litigation Reform Act of 1995 (PLRA) requires a prisoner to exhaust any available administrative remedies before challenging prison conditions in federal court. 42 U. S. C. §1997e(a). Respondent filed a grievance with California prison officials about his prison conditions, but it was rejected as untimely under state law. He subsequently sued petitioner officials under §1983 in the Federal District Court, which granted petitioners’ motion to dismiss on the ground that respondent had not fully exhausted his administrative remedies under §1997e(a). Reversing, the Ninth Circuit held that respondent had exhausted those remedies because none remained available to him. Held: The PLRA’s exhaustion requirement requires proper exhaustion of administrative remedies. Pp. 5–21. (a) Petitioners claim that a prisoner must complete the administrative review process in accordance with applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court, but respondent contends that §1997e(a) allows suit once administrative remedies are no longer available, regardless of the reason. To determine the correct interpretation, the Court looks for guidance to both administrative and habeas corpus law, where exhaustion is an important doctrine. Administrative law requires proper exhaustion of administrative remedies, which “means using all steps that the agency holds out, and doing so properly.” Pozo v. McCaughtry, 286 F. 3d 1022, 1024. Habeas law has substantively similar rules, though its terminology is different. Pp. 5–11. (b) Given this background, the Court is persuaded that the PLRA requires proper exhaustion. Pp. 11–17. (1) By referring to “such administrative remedies as are available,” §1997e(a)’s text strongly suggests “exhausted” means what it means in administrative law. P. 11. (2) Construing §1997e(a) to require proper exhaustion also serves the PLRA’s goals. It gives prisoners an effective incentive to make full use of the prison grievance process, thus providing prisons with a fair opportunity to correct their own errors. It reduces the quantity of prisoner suits. And it improves the quality of those suits that are filed because proper exhaustion often results in creation of an administrative record helpful to the court. In contrast, respondent’s interpretation would make the PLRA’s exhaustion scheme totally ineffective, since exhaustion’s benefits can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. That cannot happen unless the grievant complies with the system’s critical procedural rules. Respondent’s arguments that his interpretation would filter out frivolous claims are unpersuasive. Pp. 11–14. (3) As interpreted by respondent, the PLRA exhaustion requirement would be unprecedented. No statute or case purports to require exhaustion while at the same time allowing a party to bypass deliberately the administrative process by flouting the agency’s procedural rules. None of his models is apt. He first suggests that the PLRA requirement was patterned on habeas law as it existed between 1963 and 1977 when, under Fay v. Noia, 372 U. S. 391, 438, a federal habeas claim could be procedurally defaulted only if the prisoner deliberately bypassed state remedies. That would be fanciful, however. The PLRA was enacted contemporaneously with the Antiterrorism and Effective Death Penalty Act of 1996, which gave federal habeas review a structure markedly different from what existed before 1977. Furthermore, respondent’s interpretation would not duplicate that scheme, for it would permit a prisoner to bypass deliberately administrative review with no risk of sanction. Respondent next suggests that the PLRA exhaustion requirement is patterned on §14(b) of the Age Discrimination in Employment Act of 1967 and §706(e) of Title VII of the Civil Rights Act of 1964, but neither provision is in any sense an exhaustion provision. Pp. 14–17. (c) Respondent’s remaining arguments regarding §1997e(a)’s interpretation are also unconvincing. Pp. 17–21. 403 F. 3d 620, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
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This case presents the question whether a prisoner can satisfy the Prison Litigation Reform Act’s exhaustion requirement, 42 U. S. C. §1997e(a), by filing an untimely or otherwise procedurally defective administrative grievance or appeal. We hold that proper exhaustion of administrative remedies is necessary. I A Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–71, as amended, 42 U. S. C. §1997e et seq., in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts, see, e.g., Alexander v. Hawk, 159 F. 3d 1321, 1324–1325 (CA11 1998) (citing statistics). The PLRA contains a variety of provisions designed to bring this litigation under control. See, e.g., §1997e(c) (requiring district courts to weed out prisoner claims that clearly lack merit); §1997e(e) (prohibiting claims for emotional injury without prior showing of physical injury); §1997e(d) (restricting attorney’s fees). A centerpiece of the PLRA’s effort “to reduce the quantity … of prisoner suits” is an “invigorated” exhaustion provision, §1997e(a). Porter v. Nussle, 534 U. S. 516, 524 (2002). Before 1980, prisoners asserting constitutional claims had no obligation to exhaust administrative remedies. See Wilwording v. Swenson, 404 U. S. 249, 251 (1971) (per curiam). In the Civil Rights of Institutionalized Persons Act, §7, 94 Stat. 349, Congress enacted a weak exhaustion provision, which authorized district courts to stay actions under Rev. Stat. §1979, 42 U. S. C. §1983 for a limited time while a prisoner exhausted “such plain, speedy, and effective administrative remedies as are available.” §1997e(a)(1) (1994 ed.). “Exhaustion under the 1980 prescription was in large part discretionary; it could be ordered only if the State’s prison grievance system met specified federal standards, and even then, only if, in the particular case, the court believed the requirement ‘appropriate and in the interests of justice.’ ” Nussle, supra, at 523 (quoting §1997e). In addition, this provision did not require exhaustion if the prisoner sought only money damages and such relief was not available under the relevant administrative scheme. See McCarthy v. Madigan, 503 U. S. 140, 150–151 (1992). The PLRA strengthened this exhaustion provision in several ways. Exhaustion is no longer left to the discretion of the district court, but is mandatory. See Booth v. Churner, 532 U. S. 731, 739 (2001). Prisoners must now exhaust all “available” remedies, not just those that meet federal standards. Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies even where the relief sought—monetary damages—cannot be granted by the administrative process. Id., at 734. Finally, exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under §1983. Nussle, supra, at 524. B California has a grievance system for prisoners who seek to challenge their conditions of confinement. To initiate the process, an inmate must fill out a simple form, Dept. of Corrections, Inmate/Parolee Appeal Form, CDC 602 (12/87) (hereinafter Form 602), that is made “readily available to all inmates.” Cal. Code Regs., tit. 15, §3084.1(c) (2004). The inmate must fill out two parts of the form: part A, which is labeled “Describe Problem,” and part B, which is labeled “Action Requested.” Then, as explained on Form 602 itself, the prisoner “must first informally seek relief through discussion with the appropriate staff member.” App. 40–41. The staff member fills in part C of Form 602 under the heading “Staff Response” and then returns the form to the inmate. If the prisoner is dissatisfied with the result of the informal review, or if informal review is waived by the State, the inmate may pursue a three-step review process. See §§3084.5(b)–(d). Although California labels this “formal” review (apparently to distinguish this process from the prior step), the three-step process is relatively simple. At the first level, the prisoner must fill in part D of Form 602, which states: “If you are dissatisfied, explain below.” Id., at 40. The inmate then must submit the form, together with a few other documents, to the Appeals Coordinator within 15 working days—three weeks—of the action taken. §3084.6(c). This level may be bypassed by the Appeals Coordinator in certain circumstances. §3084.5(b). Within 15 working days after an inmate submits an appeal, the reviewer must inform the inmate of the outcome by completing part E of Form 602 and returning the form to the inmate. If the prisoner receives an adverse determination at this first level, or if this level is bypassed, the inmate may proceed to the second level of review conducted by the warden. §§3084.5(c), (e)(1). The inmate does this by filling in part F of Form 602 and submitting the form within 15 working days of the prior decision. Within 10 working days thereafter, the reviewer provides a decision on a letter that is attached to the form. If the prisoner’s claim is again denied or the prisoner otherwise is dissatisfied with the result, the prisoner must explain the basis for his or her dissatisfaction on part H of the form and mail the form to the Director of the California Department of Corrections and Rehabilitation within 15 working days. §3084.5(e)(2). An inmate’s appeal may be rejected where “[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints.” §3084.3(c)(6). C Respondent is a prisoner who was convicted for murder and is serving a life sentence in the California prison system. In October 2000, respondent was placed in administrative segregation for allegedly engaging in “inappropriate activity” in the prison chapel. Two months later, respondent was returned to the general population, but respondent claims that he was prohibited from participating in “special programs,” including a variety of religious activities. Approximately six months after that restriction was imposed, respondent filed a grievance with prison officials challenging that action. That grievance was rejected as untimely because it was not filed within 15 working days of the action being challenged. See §§3084.3(c)(6), 3084.6(c). Respondent appealed that decision internally without success, and subsequently sued petitioners—California correctional officials—under 42 U. S. C. §1983 in Federal District Court. The District Court granted petitioners’ motion to dismiss because respondent had not fully exhausted his administrative remedies as required by §1997e(a). See App. to Pet. for Cert. 24–25. The Court of Appeals for the Ninth Circuit reversed and held that respondent had exhausted administrative remedies simply because no such remedies remained available to him. 403 F. 3d 620, 629–630 (2005). The Ninth Circuit’s decision, while consistent with the decision of a divided panel of the Sixth Circuit in Thomas v. Woolum, 337 F. 3d 720 (2003), conflicts with decisions of four other Courts of Appeals. See Pozo v. McCaughtry, 286 F. 3d 1022, 1025 (CA7) (“To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require”), cert. denied, 537 U. S. 949 (2002); Ross v. County of Bernalillo, 365 F. 3d 1181, 1185–1186 (CA10 2004) (same); Spruill v. Gillis, 372 F. 3d 218, 230 (CA3 2004) (same); Johnson v. Meadows, 418 F. 3d 1152, 1159 (CA11 2005) (same). We granted certiorari to address this conflict, 546 U. S. ___ (2005), and we now reverse. II A The PLRA provides as follows: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” §1997e(a) (2000 ed.) (emphasis added). There is no dispute that this language requires a prisoner to “exhaust” administrative remedies, but the parties differ sharply in their understanding of the meaning of this requirement. Petitioners argue that this provision requires proper exhaustion. This means, according to petitioners, that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court. Respondent, on the other hand, argues that this provision demands what he terms “exhaustion simpliciter.” Brief for Respondent 7. In his view, §1997e(a) simply means that a prisoner may not bring suit in federal court until administrative remedies are no longer available. Under this interpretation, the reason why administrative remedies are no longer available is irrelevant. Bare unavailability suffices even if this results from a prisoner’s deliberate strategy of refraining from filing a timely grievance so that the litigation of the prisoner’s claim can begin in federal court. The key for determining which of these interpretations of §1997e(a) is correct lies in the term of art “exhausted.” Exhaustion is an important doctrine in both administrative and habeas law, and we therefore look to those bodies of law for guidance. B “The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.” McKart v. United States, 395 U. S. 185, 193 (1969). “The doctrine provides ‘that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” Ibid. (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50–51 (1938)). Exhaustion of administrative remedies serves two main purposes. See McCarthy, 503 U. S., at 145. First, exhaustion protects “administrative agency authority.” Ibid. Exhaustion gives an agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court,” and it discourages “disregard of [the agency’s] procedures.” Ibid. Second, exhaustion promotes efficiency. Ibid. Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court. In some cases, claims are settled at the administrative level, and in others, the proceedings before the agency convince the losing party not to pursue the matter in federal court. See ibid.; Parisi v. Davidson, 405 U. S. 34, 37 (1972); McKart, supra, at 195. “And even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration.” McCarthy, supra, at 145. Because of the advantages of administrative review, some aggrieved parties will voluntarily exhaust all avenues of administrative review before resorting to federal court, and for these parties an exhaustion requirement is obviously unnecessary. Statutes requiring exhaustion serve a purpose when a significant number of aggrieved parties, if given the choice, would not voluntarily exhaust. Aggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons. Although exhaustion promotes overall efficiency, a party may conclude—correctly or incorrectly—that exhaustion is not efficient in that party’s particular case. In addition, some aggrieved parties may prefer to proceed directly to federal court for other reasons, including bad faith.[Footnote 1] See Thomas, supra, at 752–753 (Rosen, J., dissenting in part and concurring in judgment). Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Pozo, 286 F. 3d, at 1024 (emphasis in original). This Court has described the doctrine as follows: “[A]s a general rule . . . courts should not topple over administrative decisions unless the administrative body not only has erred, but has erred against objection made at the time appropriate under its practice.” United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 37 (1952) (emphasis added). See also Sims v. Apfel, 530 U. S. 103, 108 (2000); id., at 112 (O’Connor, J., concurring in part and concurring in judgment) (“On this underlying principle of administrative law, the Court is unanimous”); id., at 114–115 (Breyer, J., dissenting); Unemployment Compensation Comm’n of Alaska v. Aragon, 329 U. S. 143, 155 (1946); Hormel v. Helvering, 312 U. S. 552, 556–557 (1941); 2 K. Davis & R. Pierce, Administrative Law Treatise §15:8, pp. 341–344 (3d ed. 1994). Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.[Footnote 2] C The law of habeas corpus has rules that are substantively similar to those described above. The habeas statute generally requires a state prisoner to exhaust state remedies before filing a habeas petition in federal court. See 28 U. S. C. §§2254(b)(1), (c). “This rule of comity reduces friction between the state and federal court systems by avoiding the ‘unseem[liness]’ of a federal district court’s overturning a state-court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O’Sullivan v. Boerckel, 526 U. S. 838, 845 (1999) (alteration in original). A state prisoner is generally barred from obtaining federal habeas relief unless the prisoner has properly presented his or her claims through one “complete round of the State’s established appellate review process.” Ibid. In practical terms, the law of habeas, like administra- tive law, requires proper exhaustion, and we have described this feature of habeas law as follows: “To . . . ‘protect the integrity’ of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies . . . .” Id., at 848 (citation omitted; emphasis in original). The law of habeas, however, uses terminology that differs from that of administrative law. In habeas, the sanction for failing to exhaust properly (preclusion of review in federal court) is given the separate name of procedural default, although the habeas doctrines of exhaustion and procedural default “are similar in purpose and design and implicate similar concerns,” Keeney v. Tamayo-Reyes, 504 U. S. 1, 7 (1992). See also Coleman v. Thompson, 501 U. S. 722, 731–732 (1991). In habeas, state-court remedies are described as having been “exhausted” when they are no longer available, regardless of the reason for their unavailability. See Gray v. Netherland, 518 U. S. 152, 161 (1996). Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted, ibid., but exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if the petitioner procedurally defaulted those claims, the prisoner generally is barred from asserting those claims in a federal habeas proceeding. Id., at 162; Coleman, supra, at 744–751. III With this background in mind, we are persuaded that the PLRA exhaustion requirement requires proper exhaustion. A The text of 42 U. S. C. §1997e(a) strongly suggests that the PLRA uses the term “exhausted” to mean what the term means in administrative law, where exhaustion means proper exhaustion. Section 1997e(a) refers to “such administrative remedies as are available,” and thus points to the doctrine of exhaustion in administrative law. B Construing §1997e(a) to require proper exhaustion also fits with the general scheme of the PLRA, whereas respondent’s interpretation would turn that provision into a largely useless appendage. The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons,[Footnote 3] and thus seeks to “affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Nussle, 534 U. S., at 525. See also Booth, 532 U. S., at 739. The PLRA also was intended to “reduce the quantity and improve the quality of prisoner suits.” Nussle, supra, at 524. Requiring proper exhaustion serves all of these goals. It gives prisoners an effective incentive to make full use of the prison grievance process and accordingly provides prisons with a fair opportunity to correct their own errors. This is particularly important in relation to state corrections systems because it is “difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Preiser v. Rodriguez, 411 U. S. 475, 491–492 (1973). Proper exhaustion reduces the quantity of prisoner suits because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court.[Footnote 4] Finally, proper exhaustion improves the quality of those prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved. While requiring proper exhaustion serves the purposes of the PLRA, respondent’s interpretation of §1997e(a) would make the PLRA exhaustion scheme wholly ineffective. The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system’s critical procedural rules. A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system’s procedural rules unless noncompliance carries a sanction, and under respondent’s interpretation of the PLRA noncompliance carries no significant sanction. For example, a prisoner wishing to bypass available administrative remedies could simply file a late grievance without providing any reason for failing to file on time. If the prison then rejects the grievance as untimely, the prisoner could proceed directly to federal court. And acceptance of the late grievance would not thwart the prisoner’s wish to bypass the administrative process; the prisoner could easily achieve this by violating other procedural rules until the prison administration has no alternative but to dismiss the grievance on procedural grounds. We are confident that the PLRA did not create such a toothless scheme. Respondent argues that his interpretation of the PLRA’s exhaustion provision would filter out frivolous claims because, by the time the deadline for filing a grievance has passed, the inmate may no longer wish to file suit. Brief for Respondent 43. But since the deadline for filing an administrative grievance is generally not very long—14 to 30 days according to the United States, see Brief for United States as Amicus Curiae 29, and even less according to respondent, see Brief for Respondent 30, n. 17—it is doubtful that Congress thought requiring a prisoner to wait this long would provide much of a deterrent. Indeed, many prisoners would probably find it difficult to prepare, file, and serve a civil complaint before the expiration of the deadline for filing a grievance in many correctional systems. Respondent also contends that his interpretation of the PLRA exhaustion requirement would filter out frivolous claims because prisoners could not simply wait until the deadline for filing an administrative grievance had passed. According to respondent, “most grievance systems give administrators the discretion to hear untimely grievances,” and therefore a prisoner “will be required to file an untimely grievance and thereby give the grievance system” the opportunity to address the complaint. Id., at 43. But assuming for the sake of argument that the premise of this argument is correct, i.e., that a court could never conclude that administrative remedies were unavailable unless an administrative decision had so held, but see Coleman, 501 U. S., at 735, n., a prisoner who does not want to participate in the prison grievance process would have little difficulty in forcing the prison to dismiss his administrative case on procedural grounds. Under the California system, for example, a prisoner has numerous opportunities to miss deadlines. Therefore, the task of engineering such a dismissal of a grievance on procedural grounds is unlikely to be sufficient to alter the conduct of a prisoner whose objective is to bypass the administrative process. C Finally, as interpreted by respondent, the PLRA exhaustion requirement would be unprecedented. Respondent has not pointed to any statute or case that purports to require exhaustion while at the same time allowing a party to bypass deliberately the administrative process by flouting the agency’s procedural rules. It is most unlikely that the PLRA, which was intended to deal with what was perceived as a disruptive tide of frivolous prisoner litigation, adopted an exhaustion requirement that goes further than any other model that has been called to our attention in permitting the wholesale bypassing of administrative remedies. Respondent identifies three models for the scheme of “exhaustion simpliciter” that he believes is set out in the PLRA, but none of these examples is apt. Respondent first looks to habeas law as it existed prior to Wainwright v. Sykes, 433 U. S. 72 (1977). Before then, a federal habeas claim could be procedurally defaulted only if the prisoner deliberately bypassed state remedies. See Fay v. Noia, 372 U. S. 391, 438 (1963). It would be fanciful, however, to suggest that the PLRA exhaustion requirement was patterned on habeas law as it existed in the years between Fay and Wainwright. As respondent stresses, the PLRA was enacted contemporaneously with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 104, which gave federal habeas review a structure markedly different from that which existed in the period between Fay and Wainwright. Furthermore, respondent’s interpretation of §1997e(a) would not duplicate the scheme that existed in habeas during that interval. As interpreted by respondent, §1997e(a) would permit a prisoner to bypass deliberately and flagrantly administrative review without any risk of sanction. Because it is unlikely that the PLRA was intended to permit this, the two Courts of Appeals that have held that §1997e(a) does not require proper exhaustion both pointedly stated that their decisions did not allow a prisoner to bypass deliberately administrative remedies. See 403 F. 3d, at 629; Thomas, 337 F. 3d, at 732, and n. 4. Neither of these courts, however, explained how §1997e(a) can be interpreted in this way—that is, so that it does not require proper exhaustion but somehow proscribes deliberate bypass. Apparently recognizing that such an interpretation neither has a statutory basis nor refers to a concept of exhaustion from an existing body of law, respondent does not contend that §1997e(a) prohibits deliberate bypass; in his view, all that §1997e(a) demands is that a prisoner wait until any opportunity for administrative review has evaporated. But in making this argument, respondent asks us to hold that the PLRA was meant to adopt an exhaustion scheme that stands in sharp contrast to both current and past habeas law and is unlike any other exhaustion scheme that has been called to our attention. Respondent next suggests that the PLRA exhaustion requirement was patterned on §14(b) of the Age Discrimination in Employment Act of 1967, (ADEA), 81 Stat. 607, codified at 29 U. S. C. §633(b), and §706(e) of Title VII of the Civil Rights Act of 1964, 78 Stat. 260, as redesignated and amended, 42 U. S. C. §2000e–5(e), but these are implausible models. Neither of these provisions makes reference to the concept of exhaustion, and neither is in any sense an exhaustion provision. In Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979), we considered §14(b) of the ADEA, which provides that, if a State has an agency to redress state-law age-related employment-discrimination claims, an ADEA claim may not be brought in federal court “before the expiration of sixty days after proceedings have been commenced under the State law.” 29 U. S. C. §633(b) (emphasis added). This provision makes no reference to the exhaustion of state remedies, only to the “commence[ment]” of state proceedings, and this provision leaves no doubt that proper commencement of those proceedings is not required. As we noted, see Oscar Mayer, 441 U. S., at 759, §14(b) of the ADEA states that the requirement of commencement is satisfied merely by sending the state agency a signed statement of the pertinent facts, and §14(b) explicitly provides that the commencement requirement does not entail compliance with any other state procedural rule, including a deadline for initiating the state proceeding, id., at 760. We see little similarity between §14(b), which merely requires the commencement of state proceedings and explicitly does not require timely commencement, and 42 U. S. C. §1997e(a), which expressly requires exhaustion of available administrative remedies with no reference to a federally based limiting principle. Section 706(e) of Title VII is also fundamentally different from the PLRA exhaustion provision. As interpreted by this Court, §706(e) means that a complainant who “initially institutes proceedings with a state or local agency with authority to grant or seek relief from the practice charged” must “file a charge” with that agency, or “have the EEOC refer the charge to that agency, within 240 days of the alleged discriminatory event … .” EEOC v. Commercial Office Products Co., 486 U. S. 107, 110–111 (1988). Following the reasoning of Oscar Mayer, we held that this filing requirement did not demand that the charge submitted to the state or local authority be filed in compliance with the authority’s time limit. 486 U. S., at 123–125. Because §706(e) of Title VII, refers only to the filing of a charge with a state or local agency and not to the exhaustion of remedies, §706(e) cannot be viewed as a model for the PLRA exhaustion provision. IV Respondent’s remaining arguments regarding the interpretation of 42 U. S. C. §1997e(a) are unconvincing. Relying on the use of the term “until” in the phrase “until such administrative remedies as are available are exhausted,” respondent contends that “[t]he use of the temporal word ‘until’ … conveys a timing requirement: it assumes that the question to be answered is simply whether the prisoner can file suit now or must wait until later.” Brief for Respondent 11. Likewise, according to respondent, the use of the present tense (“such administrative remedies as are available,” §1997e(a) (emphasis added)), requires “a focus on whether any administrative remedies are presently available.” Id., at 12. But saying that a party may not sue in federal court until the party first pursues all available avenues of administrative review necessarily means that, if the party never pursues all available avenues of administrative review, the person will never be able to sue in federal court. Thus, §1997e(a)’s use of the term “until” and the present tense does not support respondent’s position. Respondent attaches significance to the fact that the PLRA exhaustion provision does not expressly state that a prisoner must have “properly exhausted” available administrative remedies, whereas a tolling provision of the AEDPA provides that the time for filing a federal habeas petition is tolled during the period when “a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U. S. C. §2244(d)(2) (emphasis added). In our view, respondent draws an unreasonable inference from the difference in the wording of these two provisions. Although the AEDPA and the PLRA were enacted at roughly the same time, they are separate and detailed pieces of legislation. Moreover, the AEDPA and PLRA provisions deal with separate issues: tolling in the case of AEDPA and exhaustion in the case of the PLRA. Respondent maintains that his interpretation of the PLRA exhaustion provision is bolstered by another PLRA provision, 42 U. S. C. §1997e(c)(2), that permits a district court to dismiss certain prisoner claims “without first requiring the exhaustion of administrative remedies.” According to respondent, this provision shows that Congress thought that, at the point when a district court might make such a ruling (which would typically be well after the filing of the complaint), a prisoner might still have the opportunity to exhaust administrative remedies. Because short administrative filing deadlines would make this impossible, respondent contends, Congress cannot have thought that a prisoner’s failure to comply with those deadlines would preclude litigation in federal court. Respondent’s argument is unconvincing for at least two reasons. First, respondent has not shown that Congress had reason to believe that every prison system would have relatively short and categorical filing deadlines. Indeed, respondent asserts that most grievance systems give administrators the discretion to hear untimely grievances. Second, even if dismissals under §1997e(c)(2) typically occur when the opportunity to pursue administrative remedies has passed, §1997e(c)(2) still serves a useful function by making it clear that the PLRA exhaustion requirement is not jurisdictional, and thus allowing a district court to dismiss plainly meritless claims without first addressing what may be a much more complex question, namely, whether the prisoner did in fact properly exhaust available administrative remedies.[Footnote 5] Respondent next argues that the similarity between the wording of the PLRA exhaustion provision and the AEDPA exhaustion provision, 28 U. S. C. §2254(c), shows that the PLRA provision was meant to incorporate the narrow technical definition of exhaustion that applies in habeas. We reject this argument for two reasons. First, there is nothing particularly distinctive about the wording of the habeas and PLRA exhaustion provisions. They say what any exhaustion provision must say—that a judicial remedy may not be sought or obtained unless, until, or before certain other remedies are exhausted. It is, therefore, unrealistic to infer from the wording of the PLRA provision that Congress framed and adopted that provision with habeas law and not administrative law in mind. Indeed, the wording of the PLRA provision (a prisoner may not bring an action with respect to prison conditions “until such administrative remedies as are available are exhausted”) is strikingly similar to our description of the doctrine of administrative exhaustion (“ ‘no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted,’ ” McKart, 395 U. S., at 193 (citation omitted; emphasis added)). Second, respondent’s suggestion that the PLRA was meant to incorporate the same technical distinction that exists in habeas law without providing any sanction to prevent willful noncompliance—not even the deliberate bypass standard of Fay—would produce a scheme that in practical terms is radically different from the habeas scheme. Copying habeas’ narrow definition of exhaustion without furnishing any sanction to promote compliance would be like copying the design for an airplane but omitting one of the wings. Respondent contends that requiring proper exhaustion will lead prison administrators to devise procedural requirements that are designed to trap unwary prisoners and thus to defeat their claims. Respondent does not contend, however, that anything like this occurred in his case, and it is speculative that this will occur in the future. Corrections officials concerned about maintaining order in their institutions have a reason for creating and retaining grievance systems that provide—and that are perceived by prisoners as providing—a meaningful opportunity for prisoners to raise meritorious grievances. And with respect to the possibility that prisons might create procedural requirements for the purpose of tripping up all but the most skillful prisoners, while Congress repealed the “plain, speedy, and effective” standard, see 42 U. S. C. §1997e(a)(1) (1994 ed.) (repealed 1996), we have no occasion here to decide how such situations might be addressed. Respondent argues that requiring proper exhaustion is harsh for prisoners, who generally are untrained in the law and are often poorly educated. This argument overlooks the informality and relative simplicity of prison grievance systems like California’s, as well as the fact that prisoners who litigate in federal court generally proceed pro se and are forced to comply with numerous unforgiving deadlines and other procedural requirements. * * * For these reasons, we reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for proceedings consistent with this opinion. It is so ordered. Footnote 1 One can conceive of an inmate’s seeking to avoid creating an administrative record with someone that he or she views as a hostile factfinder, filing a lawsuit primarily as a method of making some corrections official’s life difficult, or perhaps even speculating that a suit will mean a welcome—if temporary—respite from his or her cell. Footnote 2 The dissent makes two chief arguments regarding the doctrine of exhaustion in administrative law. Neither is sound. First, the dissent contends that, “in the absence of explicit statutory directive,” proper exhaustion is required only in proceedings that are in the nature of “appellate review proceedings.” Post, at 9 (opinion of Stevens, J.). The only authorities cited in support of this proposition are Sims v. Apfel, 530 U. S. 103, 108–109 (2000)—which concerns different questions, i.e., issue exhaustion and the distinction between adversarial and non-adversarial proceedings—and an amici brief, which in turns cites no supporting authority. See post, at 9 (citing Brief for Law Professors 1). The amici brief argues that “[t]he conceptual key to this case is [the] distinction” between an “original proceeding,” in which “the court is simply determining the legality of out-of-court action,” and a “review proceeding,” in which the court must “review the decision of some other adjudicator.” Id., at 2–3. According to the amici brief, habeas petitions are prime examples of “review proceeding[s]” because they “ask federal courts to review the decisions of state courts.” Id., at 3. This argument is deeply flawed. “[H]abeas corpus [is] an original … civil remedy for the enforcement of the right to personal liberty, rather than . . . a stage of the state criminal proceedings … or as an appeal therefrom.” Fay v. Noia, 372 U. S. 391, 423–424 (1963) (footnote omitted). And habeas law includes the “judge-made doctrine of procedural default.” Post, at 5, n. 4. This shows that the dissent and the amici brief are incorrect in contending that a proper exhaustion requirement is incompatible with an original proceeding. Second, the dissent argues that, even if administrative law generally requires proper exhaustion, respondent falls within an exception to that rule. Post, at 11. As the dissent puts it, “[b]ecause respondent has raised constitutional claims, … the Court may not, as a matter of federal common law, apply an extrastatutory waiver requirement against him.” Ibid. But we are not applying an “extrastatutory” requirement “as a matter of federal common law.” Ibid. We are interpreting and applying the statutory requirement set out in the PLRA exhaustion provision. We interpret the PLRA exhaustion provision to require proper exhaustion, not the unprecedented scheme of exhaustion simpliciter that the respondent advocates. As for the suggestion that the PLRA might be meant to require proper exhaustion of non-constitutional claims but not constitutional claims, we fail to see how such a carve-out would serve Congress’ purpose of addressing a flood of prisoner litigation in the federal courts, see supra, at 1, when the overwhelming majority of prisoner civil rights and prison condition suits are based on the Constitution. Footnote 3 See, e.g., 18 U. S. C. §3626(b)(2) (termination of prison-conditions consent decrees). Footnote 4 The dissent’s objection, post, at 4, that exhaustion simpliciter is enough to reduce frivolous prisoner suits is not well taken. First, what matters is not whether proper exhaustion was necessary to reach that goal, but whether proper exhaustion was mandated by Congress. Second, the empirical support for the dissent’s conclusion is weak. The dissent points to a drop in volume of prisoner litigation between 1995 and 2000 and concludes that it was “clearly a direct result of the PLRA’s exhaustion requirement.” Post, at 12. But this mistakes correlation for causation: A requirement of exhaustion simpliciter will not, absent a mollified prisoner, prevent a case from being docketed—and thus appearing in the filing statistics the dissent cites. The credit for reduced filings more likely belongs to the PLRA’s enactment of 28 U. S. C. §1915A (requiring district courts to screen “before docketing, if feasible” prisoner civil complaints), and its amendments to §1915 (forbidding frequent-filer prisoners from proceeding in forma pauperis). Finally, prisoner civil rights and prison conditions cases still account for an outsized share of filings: From 2000 through 2005, such cases represented between 8.3% and 9.8% of the new filings in the federal district courts, or on average about one new prisoner case every other week for each of the nearly 1000 active and senior district judges across the country. See Administrative Office of the United States Courts, Judicial Facts and Figures, tbls. 1.1, 4.4, 4.6, http://www.uscourts.gov/ judicialfactsfigures/contents.html (as visited June 19, 2006, and available in Clerk of Court’s case file). Footnote 5 Questions regarding the timeliness of prisoner filings occur frequently. See, e.g., Wallace v. Burbury, 305 F. Supp. 2d 801, 806 (ND Ohio 2003); Pusey v. Belanger, No. Civ. 02–351–SLR, 2004 WL 2075472 (D. Del., Sept. 14, 2004); Eakle v. Tennis, No. Civ. 4:CV–04–2040, 2005 WL 2266270 (MD Pa., Sept. 16, 2005); Williams v. Briley, No. 04 C 5701, 2005 WL 1498865 (ND Ill., June 21, 2005); Issac v. Nix, No. Civ. A. 2:04CV172RWS, 2006 WL 861642 (ND Ga., Mar. 30, 2006).
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547.US.489
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The Speedy Trial Act of 1974 (Act) generally requires a federal criminal trial to begin within 70 days after a defendant is charged or makes an initial appearance. 18 U. S. C. §3161(c)(1). Recognizing that criminal cases vary widely and that there are valid reasons for greater delay in particular cases, the Act includes a long and detailed list of periods of delay that are excluded in computing the time within which trial must start. Section 3161(h)(8) permits a district court to grant a continuance and exclude the resulting delay if it makes on-the-record findings that the ends of justice served by granting the continuance outweigh the public’s and defendant’s interests in a speedy trial. To promote compliance without needlessly subverting important criminal prosecutions, the Act provides that, if the trial does not begin on time and the defendant moves, before the trial’s start or entry of a guilty plea, to dismiss, the district court must dismiss the charges, though it may choose whether to do so with or without prejudice. In April 1996, petitioner was indicted on charges arising from his attempt to open accounts using counterfeit United States bonds. The District Court granted two “ends-of-justice” continuances, see §3161(h)(8). When, at a November 8 status conference, petitioner requested another delay to January 1997, the court suggested that petitioner waive the application of the Act “for all time,” and produced a preprinted waiver form for petitioner to sign. At a January 31, 1997, status conference, the court granted petitioner another continuance so that he could attempt to authenticate the bonds, but made no mention of the Act and no findings to support excluding the 91 days between January 31 and petitioner’s next court appearance on May 2 (1997 continuance). Four years later, petitioner filed a motion to dismiss the indictment for failure to comply with the Act, which the District Court denied based on the waiver “for all time.” In a 2003 trial, petitioner was convicted. The Second Circuit affirmed. Acknowledging that a defendant’s waiver of rights under the Act may be ineffective because of the public interest served by compliance with the Act, the court found an exception for situations when the defendant causes or contributes to the delay. It also suggested that the District Court could have properly excluded the 91-day period based on the ends of justice, given the case’s complexity and the defense’s request for additional time to prepare. Held: 1. Because a defendant may not prospectively waive the application of the Act, petitioner’s waiver “for all time” was ineffective. Pp. 9–12. (a) The Act comprehensively regulates the time within which a trial must begin. Section 3161(h), which details numerous categories of delay that are not counted in applying the Act’s deadlines, conspicuously has no provision excluding periods of delay during which a defendant waives the Act’s application. It is apparent from the Act’s terms that this was a considered omission. Instead of allowing defendants to opt out, the Act demands that continuances fit within one of §3161(h)’s specific exclusions. In deciding whether to grant an ends-of-justice continuance, a court must consider a defendant’s need for “reasonable time to obtain counsel,” “continuity of counsel,” and “effective preparation” of counsel. §3161(h)(8)(B)(iv). If a defendant could simply waive the Act’s application in order to secure more time, no defendant would ever need to put such considerations before the court under the rubric of an ends-of-justice exclusion. The Act’s purposes also cut against exclusion on the grounds of mere consent or waiver. Were the Act solely designed to protect a defendant’s right to a speedy trial, such an application might make sense, but the Act was also designed with the public interest firmly in mind. This interpretation is entirely in accord with the Act’s legislative history. Pp. 9–11. (b) This Court rejects the District Court’s reliance on §3162(a)(2), which provides that a defendant whose trial does not begin on time is deemed to have waived the right to move for dismissal if that motion is not filed prior to trial or entry of a guilty plea. That section makes no mention of prospective waivers, and there is no reason to think that Congress wanted to treat prospective and retrospective waivers similarly. Allowing prospective waivers would seriously undermine the Act because, in many cases, the prosecution, defense, and court would all like to opt out, to the detriment of the public interest. Section 3162(a)(2)’s retrospective waiver does not pose a comparable danger. Because the prosecution and court cannot know until the trial starts or the guilty plea is entered whether the defendant will forgo moving to dismiss, they retain a strong incentive to make sure the trial begins on time. Pp. 11–12. 2. Petitioner is not estopped from challenging the excludability under the Act of the 1997 continuance. Factors that “typically inform the decision whether to apply the [estoppel] doctrine in a particular case” include (1) whether “a party’s later position [is] clearly inconsistent with its earlier position”; (2) “whether the party has succeeded in persuading a court to accept that … earlier position”; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” New Hampshire v. Maine, 532 U. S. 742, 750–751. None of the three possible “positions” taken by petitioner gives rise to an estoppel. First, recognizing an estoppel based on petitioner’s promise not to move for dismissal under §3162(a)(2) would entirely swallow the Act’s no-waiver policy. Second, petitioner’s (mistaken) agreement that waivers are enforceable does not provide a ground for estoppel because petitioner did not “succee[d] in persuading” the District Court to accept the validity of prospective waivers. On the contrary, the District Court requested the waiver and produced the form for petitioner to sign. Even if the other factors favor estoppel, they do not predominate. Finally, petitioner’s representation at the January 31 status conference that a continuance was needed to gather evidence of the bonds’ authenticity does not support estoppel because that position was not “clearly inconsistent” with the position that he now takes in seeking dismissal, i.e., that delay from that continuance was not excluded under the Act. Nothing in the discussion at the conference suggests that the question presented by the continuance request was viewed as anything other than a case-management question laying entirely within the District Court’s discretion. Pp. 12–15. 3. When a district court makes no findings on the record to support a §3161(h)(8) continuance, harmless-error review is not appropriate. The Government argues that an express finding need not be entered contemporaneously and could be supplied on remand. But the Act requires express findings, see §3161(h)(8)(A), and at the very least implies that those findings must be put on the record by the time the district court rules on the motion to dismiss. Because the District Court made no such express findings, the 1997 continuance is not excluded from the speedy trial clock. This error is not subject to harmless-error review. Harmless-error review under Federal Rule of Criminal Procedure 52(a) presumptively applies to “all errors where a proper objection is made,” Neder v. United States, 527 U. S. 1, 7, but strong support for an implied repeal of Rule 52(a) in this context is provided by the Act’s unequivocal provisions, which specify that a trial “shall commence” within 70 days, §3161(c)(1) (emphasis added), and that “[n]o … period of delay” from an ends-of-justice continuance “shall be excludable” from the time period unless the court sets forth its reasoning, §3161(h)(8)(A) (emphasis added). Applying harmless-error review would also tend to undermine the detailed requirements of the provisions regulating ends-of-justice continuances. Pp. 15–18. 4. Because the 91-day continuance, which was not excluded from the speedy trial clock, exceeded the maximum 70-day delay, the Act was violated, and there is no need to address whether other periods of delay were not excludable. The District Court may determine in the first instance whether the dismissal in this case should be with or without prejudice. Pp. 18–19. 401 F. 3d 36, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined, and in which Scalia, J., joined as to all but Part III–A–2. Scalia, J., filed an opinion concurring in part and concurring in the judgment.
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This case requires us to consider the application of the doctrines of waiver, judicial estoppel, and harmless error to a violation of the Speedy Trial Act of 1974 (Act), 18 U. S. C. §§3161–3174. The Act generally requires a federal criminal trial to begin within 70 days after a defendant is charged or makes an initial appearance, §3161(c)(1), but the Act contains a detailed scheme under which certain specified periods of delay are not counted. In this case, petitioner’s trial did not begin within 70 days of indictment. Indeed, his trial did not commence until more than seven years after the filing of the indictment, but petitioner, at the suggestion of the trial judge, signed a blanket, prospective waiver of his rights under the Act. We address the following questions: whether this waiver was effective; whether petitioner is judicially estopped from challenging the validity of the waiver; and whether the trial judge’s failure to make the findings required to exclude a period of delay under a particular provision of the Act, §3161(h)(8), was harmless error. I In March 1996, petitioner attempted to open accounts at seven financial institutions using counterfeit $10 million United States bonds. The quality of the counterfeiting was, to put it mildly, not expert. One bond purported to be issued by the “Ministry of Finance of U. S. A.” 401 F. 3d 36, 39 (CA2 2005) (internal quotation marks omitted). Others contained misspelled words such as “Thunted States” and the “Onited States” (United States), “Dhtladelphla” (Philadelphia), “Cgicago” (Chicago), and “forevev” (forever). Id., at 39, n. 1 (internal quotation marks omitted). After petitioner presented these bonds, the Secret Service was contacted, and petitioner was arrested. Following arraignment on a criminal complaint, he was released on bond. On April 4, 1996, a grand jury in the Eastern District of New York indicted petitioner on seven counts of attempting to defraud a financial institution, in violation of 18 U. S. C. §1344, and one count of knowingly possessing counterfeit obligations of the United States, in violation of §472. On June 26, the District Court, citing the complexity of the case, granted what is termed an “ends-of-justice” continuance, see §3161(h)(8)(B)(ii), until September 6. On September 6, the District Court granted another continuance, this time until November 8. At the November 8 status conference, petitioner requested, without opposition from the Government, a further adjournment to January 1997. Concerned about the difficulty of fitting petitioner’s trial into its heavily scheduled calendar and the prospect that petitioner might “only waive [the Act] for so long as it is convenient for [him] to waive,” the District Court instructed petitioner as follows: “I think if I’m going to give you that long an adjournment, I will have to take a waiver for all time.” App. 71. Petitioner’s counsel responded that the defense would “waive for all time. That will not be a problem. That will not be an issue in this case.” Id., at 72. The District Court then addressed petitioner directly and appears to have attempted to explain the operation of a provision of the Act, 18 U. S. C. §3162(a)(2), under which a defendant whose trial does not begin on time is deemed to have waived the right to move for dismissal of the information or indictment if he or she does not file that motion prior to trial or entry of a guilty plea. The District Court reasoned: “[I]f you can waive [the Act] by inaction, i. e., not raising the motion to dismiss, you can waive affirmatively, knowledgeably, intelligently your right to do so, your right to a speedy trial and your right to make a motion to dismiss for the speedy trial.” App. 73. The court told petitioner that it was “prepared to start … trial right away,” ibid., but that if a continuance was granted, petitioner might have to wait some time for trial because the court had a “fairly big cas[e] … which [wa]s set to take eight months for trial.” “[I]f that [trial] starts before you start,” the court warned, “you may have to wait until that is done.” Id., at 74. The District Court then produced a preprinted form—apparently of its own devising—captioned “Waiver of Speedy Trial Rights.” Id., at 79. The court led petitioner and his counsel through the form, and both signed it. Among other things, the form stated: “I wish to waive my rights to a speedy trial … under the Speedy Trial Act of 1974 (18 U. S. C. §3161 et seq.), under the Rules of this Circuit and under the Speedy Trial Plan adopted by this Court.” Ibid. The form also stated: “I have been advised and fully understand that … I also waive any and all rights to make a motion to dismiss the indictment … against me for failure of the Court to give me a speedy trial and that I waive all of such rights to a speedy trial and to make such a motion or motions for all time.” Ibid. After the form was signed, petitioner’s counsel requested that a further status conference be scheduled for January 31, 1997, and the court agreed. Id., at 77. At the January 31 status conference, petitioner sought yet another continuance “to tap … the proper channels to authenticate [the] bonds.” Id., at 81. Petitioner and the Government emphasized that this request raised no issue under the Act because petitioner had “waived for all time,” though the Government suggested that it “would like to try the case sometime in 1997.” Ibid. After a brief discussion between the court and petitioner’s counsel about the need to investigate the authenticity of what seemed such obviously fake bonds, the court offered to set trial for May 5, 1997. Id., at 86. The court admonished petitioner’s counsel to “[g]et to work” and noted: “This [case] is a year old. That’s enough for a criminal case.” Id., at 86, 85. Nevertheless, apparently satisfied with petitioner’s waiver “for all time,” the District Court made no mention of the Act and did not make any findings to support exclusion of the 91 days between January 31 and petitioner’s next court appearance on May 2, 1997 (1997 continuance). The four years that followed saw a variety of proceedings in petitioner’s case, but no trial. See 401 F. 3d, at 40–41. Counsel sought to be relieved because petitioner insisted that he argue that the bonds were genuine, and the court ultimately granted counsel’s request to withdraw. At the court’s suggestion, petitioner was examined by a psychiatrist, who determined that petitioner was competent to stand trial. Petitioner then asked to proceed pro se and sought to serve subpoenas on, among others, the President, the Chairman of the Federal Reserve Board, the Attorney General, the Secretary of State, the late Chinese leader Chiang Kai-shek, and “ ‘The Treasury Department of Treasury International Corporation.’ ” Id., at 40; App. 129. After a year of quashed subpoenas, the District Court set the case for trial, only to conclude on the morning of jury selection that it had to inquire once again into petitioner’s competency. The court dismissed the jury panel, found petitioner incompetent, and committed him to the custody of the Attorney General for hospitalization and treatment. On interlocutory appeal, however, the Court of Appeals vacated that order and remanded for further hearings. In July and August 2000, the District Court held those hearings and received further briefing on the competency issue. On March 7, 2001, while the competency issue remained under submission, petitioner moved to dismiss the indictment for failure to comply with the Act. The District Court denied the motion on the ground that petitioner had waived his Speedy Trial Act rights “for all time,” mentioning in passing that the case was complex. Id., at 128–129. In the same order, the court found petitioner incompetent. Id., at 135. That latter determination was upheld on interlocutory appeal, and petitioner was committed for evaluation. After several months of hospitalization, petitioner was found to be delusional but competent to stand trial, and he was released. Finally, on April 7, 2003, more than seven years after petitioner was indicted, his trial began. The jury found petitioner guilty on six counts of attempting to defraud a financial institution,[Footnote 1] and the court sentenced him to 63 months of imprisonment. The Court of Appeals affirmed the judgment of conviction.[Footnote 2] Acknowledging that “a defendant’s waiver of rights under the Speedy Trial Act may be ineffective” because of the public interest served by compliance with the Act, the Court of Appeals found an exception for situations “ ‘when defendant’s conduct causes or contributes to a period of delay.’ ” 401 F. 3d, at 43–44 (quoting United States v. Gambino, 59 F. 3d 353, 360 (CA2 1995)). “[D]oubt[ing] that the public interest in expeditious prosecution would be served by a rule that allows defendants to request a delay and then protest the grant of their request,” the Court of Appeals held that petitioner would not be heard to complain of the 91-day delay in early 1997. 401 F. 3d, at 45. The Court of Appeals went on to suggest that there “can be no doubt that the district court could have properly excluded this period of time based on the ends of justice” in light of the complexity of the case and defense counsel’s request for additional time to prepare. Ibid. We granted certiorari to resolve the disagreement among the Courts of Appeals on the standard for analyzing whether a defendant has made an effective waiver of rights under the Act. 546 U. S. ___ (2006). II As noted above, the Speedy Trial Act generally requires a trial to begin within 70 days of the filing of an information or indictment or the defendant’s initial appearance, 18 U. S. C. §3161(c)(1), but the Act recognizes that criminal cases vary widely and that there are valid reasons for greater delay in particular cases. To provide the necessary flexibility, the Act includes a long and detailed list of periods of delay that are excluded in computing the time within which trial must start. See §3161(h). For example, the Act excludes “delay resulting from other proceedings concerning the defendant,” §3161(h)(1), “delay resulting from the absence or unavailability of the defendant or an essential witness,” §3161(h)(3), “delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial,” §3161(h)(4), and “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted,” §3161(h)(7). Much of the Act’s flexibility is furnished by §3161(h)(8), which governs ends-of-justice continuances, and which we set out in relevant part in the margin.[Footnote 3] This provision permits a district court to grant a continuance and to exclude the resulting delay if the court, after considering certain factors, makes on-the-record findings that the ends of justice served by granting the continuance outweigh the public’s and defendant’s interests in a speedy trial. This provision gives the district court discretion—within limits and subject to specific procedures—to accommodate limited delays for case-specific needs. To promote compliance with its requirements, the Act contains enforcement and sanctions provisions. If a trial does not begin on time, the defendant may move, before the start of trial or the entry of a guilty plea, to dismiss the charges, and if a meritorious and timely motion to dismiss is filed, the district court must dismiss the charges, though it may choose whether to dismiss with or without prejudice. In making that choice, the court must take into account, among other things, “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Act] and on the administration of justice.” §3162(a)(2). This scheme is designed to promote compliance with the Act without needlessly subverting important criminal prosecutions. The more severe sanction (dismissal with prejudice) is available for use where appropriate, and the knowledge that a violation could potentially result in the imposition of this sanction gives the prosecution a powerful incentive to be careful about compliance. The less severe sanction (dismissal without prejudice) lets the court avoid unduly impairing the enforcement of federal criminal laws—though even this sanction imposes some costs on the prosecution and the court, which further encourages compliance. When an indictment is dismissed without prejudice, the prosecutor may of course seek—and in the great majority of cases will be able to obtain—a new indictment, for even if “the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned … within six calendar months of the date of the dismissal.” §3288. With this background in mind, we turn to the questions presented by the unusual procedures followed in this case. III Petitioner contends, and the Government does not seriously dispute, that a defendant may not prospectively waive the application of the Act.[Footnote 4] We agree. A 1 As our discussion above suggests, the Speedy Trial Act comprehensively regulates the time within which a trial must begin. Section 3161(h) specifies in detail numerous categories of delay that are not counted in applying the Act’s deadlines. Conspicuously, §3161(h) has no provision excluding periods of delay during which a defendant waives the application of the Act, and it is apparent from the terms of the Act that this omission was a considered one. Instead of simply allowing defendants to opt out of the Act, the Act demands that defense continuance requests fit within one of the specific exclusions set out in subsection (h). Subsection (h)(8), which permits ends-of-justice continuances, was plainly meant to cover many of these requests. Among the factors that a district court must consider in deciding whether to grant an ends-of-justice continuance are a defendant’s need for “reasonable time to obtain counsel,” “continuity of counsel,” and “effective preparation” of counsel. §3161(h)(8)(B)(iv). If a defendant could simply waive the application of the Act whenever he or she wanted more time, no defendant would ever need to put such considerations before the court under the rubric of an ends-of-justice exclusion. The purposes of the Act also cut against exclusion on the grounds of mere consent or waiver. If the Act were designed solely to protect a defendant’s right to a speedy trial, it would make sense to allow a defendant to waive the application of the Act. But the Act was designed with the public interest firmly in mind. See, e.g., 18 U. S. C. §3161(h)(8)(A) (to exclude delay resulting from a continuance—even one “granted … at the request of the defendant”—the district court must find “that the ends of justice served … outweigh the best interest of the public and the defendant in a speedy trial” (emphasis added)). That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely. 2 This interpretation is entirely in accord with the Act’s legislative history. As both the 1974 House and Senate Reports illustrate, the Act was designed not just to benefit defendants but also to serve the public interest by, among other things, reducing defendants’ opportunity to commit crimes while on pretrial release and preventing extended pretrial delay from impairing the deterrent effect of punishment. See S. Rep. No. 93–1021, pp. 6–8 (citing “bail problems,” offenses committed during pretrial release, and the “seriously undermined … deterrent value of the criminal process” as “the debilitating effect[s] of court delay upon our criminal justice system”); H. R. Rep. No. 93–1508, p. 8 (“The purpose of this bill is to assist in reducing crime and the danger of recidivism by requiring speedy trials …”). The Senate Report accompanying the 1979 amendments to the Act put an even finer point on it: “[T]he Act seeks to protect and promote speedy trial interests that go beyond the rights of the defendant; although the Sixth Amendment recognizes a societal interest in prompt dispositions, it primarily safeguards the defendant’s speedy trial right—which may or may not be in accord with society’s.” S. Rep. No. 96–212, p. 29; see also id., at 6; H. R. Rep. No. 96–390, p. 3 (1979). Because defendants may be content to remain on pretrial release, and indeed may welcome delay, it is unsurprising that Congress refrained from empowering defendants to make prospective waivers of the Act’s application. See S. Rep. No. 96–212, at 29 (“Because of the Act’s emphasis on that societal right, a defendant ought not be permitted to waive rights that are not his or hers alone to relinquish”). B The District Court reasoned that 18 U. S. C. §3162(a)(2) supports the conclusion that a defendant may prospectively waive the strictures of the Act. This provision states that “[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.” Because this provision in effect allows a defendant to waive a completed violation of the Act (by declining to move to dismiss before the start of trial or the entry of a guilty plea), it follows, so the District Court’s reasoning went, that a defendant should be allowed to make a prospective waiver. We disagree. It is significant that §3162(a)(2) makes no mention of prospective waivers, and there is no reason to think that Congress wanted to treat prospective and retrospective waivers similarly. Allowing prospective waivers would seriously undermine the Act because there are many cases—like the case at hand—in which the prosecution, the defense, and the court would all be happy to opt out of the Act, to the detriment of the public interest. The sort of retrospective waiver allowed by §3161(a)(2) does not pose a comparable danger because the prosecution and the court cannot know until the trial actually starts or the guilty plea is actually entered whether the defendant will forgo moving to dismiss. As a consequence, the prosecution and the court retain a strong incentive to make sure that the trial begins on time. Instead of granting broad opt-out rights, §3162(a)(2) serves two unrelated purposes. First, §3162(a)(2) assigns the role of spotting violations of the Act to defendants—for the obvious reason that they have the greatest incentive to perform this task.[Footnote 5] Second, by requiring that a defendant move before the trial starts or a guilty plea is entered, §3162(a)(2) both limits the effects of a dismissal with- out prejudice (by ensuring that an expensive and time-consuming trial will not be mooted by a late-filed motion under the Act) and prevents undue defense gamesmanship.[Footnote 6] For these reasons, we reject the District Court’s reliance on §3162(a)(2) and conclude a defendant may not prospectively waive the application of the Act. It follows that petitioner’s waiver “for all time” was ineffective. We therefore turn to the Government’s alternative grounds in support of the result below. IV A The Government contends that because “petitioner’s express waiver induced the district court to grant a continuance without making an express ends-of-justice finding …, basic principles of judicial estoppel preclude petitioner from enjoying the benefit of the continuance, but then challenging the lack of a finding.” Brief for United States 10. In this case, however, we see no basis for applying the doctrine of judicial estoppel. As this Court has explained: “ ‘[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’ Davis v. Wakelee, 156 U. S. 680, 689 (1895). This rule, known as judicial estoppel, ‘generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.’ Pegram v. Herdrich, 530 U. S. 211, 227, n. 8 (2000).” New Hampshire v. Maine, 532 U. S. 742, 749 (2001). Although this estoppel doctrine is equitable and thus cannot be reduced to a precise formula or test, “several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position … . A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id., at 750–751 (citations and internal quotation marks omitted). In applying this doctrine to the present case, we must first identify the “position” of petitioner’s that the Government seeks to enforce. There are three possibilities: (1) petitioner’s promise not to move for dismissal under §3162(a)(2), (2) petitioner’s (implied) position that waivers of the Act are enforceable, and (3) petitioner’s claim that counsel needed additional time to research the authenticity of the bonds. None of these gives rise to an estoppel. First, we are unwilling to recognize an estoppel based on petitioner’s promise not to move for dismissal because doing so would entirely swallow the Act’s no-waiver policy. We see little difference between granting a defendant’s request for a continuance in exchange for a promise not to move for dismissal and permitting a prospective waiver, and as we hold above, prospective waivers are inconsistent with the Act. Second, petitioner’s (mistaken) agreement that Speedy Trial Act waivers are valid also does not provide a ground for estoppel. Petitioner did not “succee[d] in persuading” the District Court to accept the proposition that prospective waivers of Speedy Trial Act rights are valid. On the contrary, it was the District Court that requested the waiver and produced the form for petitioner to sign. And while the other relevant factors (clear inconsistency and unfair advantage or detriment) might in isolation support the Government, we think they do not predominate where, as here, the Government itself accepted the District Court’s interpretation without objection. Finally, petitioner’s representation to the District Court at the January 31 status conference that a continuance was needed to gather evidence of the bonds’ authenticity does not support the Government’s estoppel argument because the position that petitioner took then was not “clearly inconsistent” with the position that he now takes in seeking dismissal of the indictment. This would be a different case if petitioner had succeeded in persuading the District Court at the January 31 status conference that the factual predicate for a statutorily authorized exclusion of delay could be established—for example, if defense counsel had obtained a continuance only by falsely representing that he was in the midst of working with an expert who might authenticate the bonds. In fact, however, the discussion at the January 31 status conference did not focus on the requirements of the Act. Rather, the court and the parties proceeded on the assumption that the court’s waiver form was valid and that the Act could simply be disregarded. Nothing in the discussion at the conference suggests that the question presented by the defense continuance request was viewed as anything other than a case-management question that lay entirely within the scope of the District Court’s discretion. Under these circumstances, the best understanding of the position taken by petitioner’s attorney at the January 31 status conference is that granting the requested continuance would represent a sound exercise of the trial judge’s discretion in managing its calendar. This position was not “clearly inconsistent” with petitioner’s later position that the continuance was not permissible under the terms of the Act. Accordingly, we hold that petitioner is not estopped from challenging the excludability under the Act of the 1997 continuance. B While conceding that the District Court “never made an express finding on the record” about the ends-of-justice balance, Brief for United States 30, the Government argues that such an express finding did not need to be entered contemporaneously—and could be supplied on remand—because, given the circumstances in 1997, the ends-of-justice balance in fact supported the 1997 continuance. We reject this argument. In the first place, the Act requires express findings, and in the second place, it does not permit those findings to be made on remand as the Government proposes. The Act requires that when a district court grants an ends-of-justice continuance, it must “se[t] forth, in the record of the case, either orally or in writing, its reasons” for finding that the ends of justice are served and they outweigh other interests. 18 U. S. C. §3161(h)(8)(A). Although the Act is clear that the findings must be made, if only in the judge’s mind, before granting the continuance (the continuance can only be “granted … on the basis of [the court’s] findings”), the Act is ambiguous on precisely when those findings must be “se[t] forth, in the record of the case.” However this ambiguity is resolved, at the very least the Act implies that those findings must be put on the record by the time a district court rules on a defendant’s motion to dismiss under §3162(a)(2).[Footnote 7] In ruling on a defendant’s motion to dismiss, the court must tally the unexcluded days. This, in turn, requires identifying the excluded days. But §3161(h)(8)(A) is explicit that “[n]o … period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable … unless the court sets forth … its reasons for [its] finding[s].” Thus, without on-the-record findings, there can be no exclusion under §3161(h)(8). Here, the District Court set forth no such findings at the January 31 status conference, and §3161(h)(8)(A) is not satisfied by the District Court’s passing reference to the case’s complexity in its ruling on petitioner’s motion to dismiss. Therefore, the 1997 continuance is not excluded from the speedy trial clock. The Government suggests that this error, stemming as it does from the District Court’s technical failure to make an express finding, may be regarded as harmless. Brief for United States 31, n. 8. Harmless-error review under Federal Rule of Criminal Procedure 52(a) presumptively applies to “all errors where a proper objection is made,” Neder v. United States, 527 U. S. 1, 7 (1999), and we have required “strong support” to find an implied repeal of Rule 52, United States v. Vonn, 535 U. S. 55, 65 (2002). We conclude, however, that the provisions of the Act provide such support here. The relevant provisions of the Act are unequivocal. If a defendant pleads not guilty, the trial “shall commence” within 70 days “from the filing date (and making public) of the information or indictment” or from the defendant’s initial appearance, whichever is later. §3161(c)(1) (emphasis added). Delay resulting from an ends-of-justice continuance is excluded from this time period, but “[n]o such period of delay … shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” §3161(h)(8)(A) (emphasis added). When a trial is not commenced within the prescribed period of time, “the information or indictment shall be dismissed on motion of the defendant.” §3162(a)(2) (emphasis added). A straightforward reading of these provisions leads to the conclusion that if a judge fails to make the requisite findings regarding the need for an ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed. The argument that the District Court’s failure to make the prescribed findings may be excused as harmless error is hard to square with the Act’s categorical terms. See Alabama v. Bozeman, 533 U. S. 146, 153–154 (2001) (no “ ‘harmless’ ” or “ ‘technical’ ” violations of the Interstate Agreement on Detainers’ “antishuttling” provision in light of its “absolute language”). Applying the harmless-error rule would also tend to undermine the detailed requirements of the provisions regulating ends-of-justice continuances. The exclusion of delay resulting from an ends-of-justice continuance is the most open-ended type of exclusion recognized under the Act and, in allowing district courts to grant such continuances, Congress clearly meant to give district judges a measure of flexibility in accommodating unusual, complex, and difficult cases. But it is equally clear that Congress, knowing that the many sound grounds for granting ends-of-justice continuances could not be rigidly structured, saw a danger that such continuances could get out of hand and subvert the Act’s detailed scheme. The strategy of §3161(h)(8), then, is to counteract substantive open-endedness with procedural strictness. This provision demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings. Excusing the failure to make these findings as harmless error would be inconsistent with the strategy embodied in §3161(h). Such an approach would almost always lead to a finding of harmless error because the simple failure to make a record of this sort is unlikely to affect the defendant’s rights. We thus conclude that when a district court makes no findings on the record in support of an §3161(h)(8) continuance, harmless-error review is not appropriate. V We hold that that the 91-day continuance granted on January 31 was not excluded from petitioner’s speedy trial clock. Because this continuance by itself exceeded the maximum 70-day delay provided in §3161(c)(1), the Act was violated, and we need not address whether any other periods of delay during petitioner’s case were not excludable. The sanction for a violation of the Act is dismissal, but we leave it to the District Court to determine in the first instance whether dismissal should be with or without prejudice. See §3162(a)(2). The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The Government dismissed the other counts before trial. Footnote 2 The Court of Appeals ultimately remanded the case for resentencing in light of United States v. Booker, 543 U. S. 220 (2005). That issue is not before us, though we note that the District Court has indicated it would impose the same 63-month sentence if the defendant is produced for resentencing. No. 96–CR–285 (TCP) (EDNY, Oct. 27, 2005). Footnote 3 Title 18 U. S. C. §3161(h)(8) provides: “(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. “(B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows: “(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. “(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. . . . . . “(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence. “(C) No continuance under subparagraph (A) of this paragraph shall be granted because of general congestion of the court’s calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.” Footnote 4 We left this question open in New York v. Hill, 528 U. S. 110, 117, n. 2 (2000). Footnote 5 The possibility of obtaining a dismissal with prejudice plainly gives a defendant a strong incentive to police compliance, and even if a case is dismissed without prejudice, a defendant may derive some benefit. For example, the time and energy that the prosecution must expend in connection with obtaining a new indictment may be time and energy that the prosecution cannot devote to the preparation of its case. Footnote 6 As noted, in order to promote compliance with the Act, Congress set the minimum permissible penalty at a level that would impose some costs on the prosecution and the court without unduly interfering with the enforcement of the criminal laws. By specifying that a defendant may not move for dismissal once the trial has commenced or a plea has been entered, the amount of inconvenience resulting from a dismissal without prejudice is limited, and defendants are restricted in their ability to use such a motion for strategic purposes. For example, defendants cannot wait to see how a trial is going (or how it comes out) before moving to dismiss. Footnote 7 The best practice, of course, is for a district court to put its findings on the record at or near the time when it grants the continuance.
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549.US.7
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In the penalty phase of respondent’s capital murder trial, he introduced mitigating evidence to show, inter alia, that he would lead a constructive life if incarcerated rather than executed, testifying that he had done so during a previous incarceration, when he had embraced Christianity. Two prison chaplains and his Christian sponsors from that time testified on his behalf, and the parties’ closing arguments discussed this mitigating evidence and how the jury should consider it. The trial judge told the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” an instruction known as “factor (k)” under California’s then-applicable statutory scheme. Respondent was sentenced to death. He contended, on direct review and in federal habeas proceedings, that factor (k) and the trial court’s other instructions barred the jury from considering his forward-looking mitigation evidence in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. The Federal District Court denied relief, but the Ninth Circuit reversed. On reconsideration in light of Brown v. Payton, 544 U. S. 133, the Ninth Circuit again invalidated respondent’s sentence. Held: The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings. Pp. 4–16. (a) This Court has previously found that factor (k) does not preclude consideration of constitutionally relevant evidence, such as mitigating evidence about a defendant’s precrime background and character, Boyde v. California, 494 U. S. 370, 377–378, 386, or postcrime rehabilitation, Brown v. Payton, supra, at 135–136, and found the proper inquiry to be “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence,” Boyde, supra, at 380. Pp. 4–6. (b) That inquiry applies here. Like Payton, this case involves forward-looking evidence and comes to the Court on federal habeas proceedings, but unlike Payton, it was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Ninth Circuit distinguished Payton on this ground, but erred in finding a “reasonable probability” that the jury did not consider evidence of respondent’s future potential. 414 F. 3d 1094, 1138. Pp. 6–16. (1) The Circuit adopted a narrow and unrealistic interpretation of factor (k), ruling that “this instruction allows the jury to consider evidence that bears upon the commission of the crime by the defendant and excuses or mitigates his culpability for the offense,” 414 F. 3d 1094, 1134. As Boyde and Payton explain, the jury is directed “to consider any other circumstance that might excuse the crime.” Boyde, supra, at 382. Just as precrime background and character (Boyde) and postcrime rehabilitation (Payton) may “extenuat[e] the gravity of the crime,” so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty. The Ninth Circuit failed to heed the full import of Payton’s holding, which is significant even where AEDPA is inapplicable. Moreover, since respondent sought to extrapolate future behavior from precrime conduct, his mitigation theory was more analogous to the good-character evidence Boyde found to fall within factor (k)’s purview. Pp. 6–8. (2) This Court’s interpretation of factor (k) is the one most consistent with the evidence presented to the jury, the parties’ closing arguments, and the trial court’s other instructions. It is improbable that the jury believed that the parties were engaged in an exercise in futility when respondent presented extensive forward-looking evidence in open court. Both prosecution and defense arguments assumed the evidence was relevant. The prosecutor’s remarks that the evidence was weak and his opinion about the weight it should be given confirmed to the jury that it should analyze respondent’s future potential. Respondent’s personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose. This analysis is confirmed by defense counsel’s closing arguments. The trial court’s other instructions make it quite implausible that the jury would deem itself foreclosed from considering respondent’s full case in mitigation. The judge told the jury to consider all of the evidence, which included respondent’s forward-looking mitigation case. The sharp contrast between the aggravation instruction (only enumerated factors could be considered) and the mitigation one (listed factors were merely examples) also made clear that the jury was to take a broad view of mitigating evidence. In concluding otherwise, the Ninth Circuit cited juror queries as evidence of confusion. Assuming that interpretation is correct, the court’s conclusion that a juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence could not fall within factor (k). Pp. 8–16. 414 F. 3d 1094, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.
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Fernando Belmontes, the respondent here, was tried in 1982 in the Superior Court of the State of California in and for the County of San Joaquin. A jury returned a verdict of murder in the first degree and then determined he should be sentenced to death. The issue before us concerns a jury instruction in the sentencing phase. The trial court, following the statute then in effect, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” App. 184. Under the then-applicable statutory scheme this general or catchall factor was codified at Cal. Penal Code Ann. §190.3 (k) (West 1988); and it is referred to as “factor (k).” Belmontes contended, on direct review, in state collateral proceedings, and in the federal habeas proceedings giving rise to this case, that factor (k) and the trial court’s other instructions barred the jury from considering his forward-looking mitigation evidence—specifically evidence that he likely would lead a constructive life if incarcerated instead of executed. The alleged limitation, in his view, prevented the jury from considering relevant mitigation evidence, in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. See, e.g., Penry v. Johnson, 532 U. S. 782, 797 (2001); Skipper v. South Carolina, 476 U. S. 1, 4–5, 8 (1986); Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). The California Supreme Court, affirming the judgment and sentence, rejected this contention and other challenges. People v. Belmontes, 45 Cal. 3d 744, 799–802, 819, 755 P. 2d 310, 341–343, 355 (1988). In February 1994, after exhausting state remedies, respondent filed an amended federal habeas petition. The United States District Court for the Eastern District of California denied relief, App. to Pet. for Cert. 140a–141a, 145a, but a divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, Belmontes v. Woodford, 350 F. 3d 861, 908 (2003). Over the dissent of eight judges, the Court of Appeals denied rehearing en banc. Belmontes v. Woodford, 359 F. 3d 1079 (2004). This Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Brown v. Payton, 544 U. S. 133 (2005). Brown v. Belmontes, 544 U. S. 945 (2005). On remand, a divided panel again invalidated respondent’s sentence; it distinguished Payton on the grounds that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, though applicable in that case, does not apply here. Belmontes v. Brown, 414 F. 3d 1094, 1101–1102 (2005). Over yet another dissent, the Court of Appeals again denied rehearing en banc. Belmontes v. Stokes, 427 F. 3d 663 (2005). We granted certiorari, 547 U. S. ___ (2006), and now reverse. I The evidence at trial showed that in March 1981, while burglarizing a home where two accomplices had attended a party, respondent unexpectedly encountered 19-year-old Steacy McConnell. Respondent killed her by striking her head 15 to 20 times with a steel dumbbell bar. Respondent had armed himself with the dumbbell bar before entering the victim’s home. See Belmontes, 45 Cal. 3d, at 760–764, 755 P. 2d, at 315–317. In the sentencing phase of his trial Belmontes introduced mitigating evidence to show, inter alia, that he would make positive contributions to society in a structured prison environment. Respondent testified that, during a previous term under the California Youth Authority (CYA), he had behaved in a constructive way, working his way to the number two position on a fire crew in the CYA fire camp in which he was incarcerated. App. 44–45, 53. About that time he had embraced Christianity and entered into a Christian sponsorship program. He admitted that initially he participated in this program to spend time away from the camp. Later, after forming a good relationship with the married couple who were his Christian sponsors, he pursued a more religious life and was baptized. Although his religious commitment lapsed upon his release from the CYA, he testified that he would once again turn to religion whenever he could rededicate himself fully to it. Id., at 46–48, 53–55. Finally, he answered in the affirmative when asked if he was “prepared to contribute in anyway [he] can to society if [he was] put in prison for the rest of [his] life.” Id., at 58. Respondent’s former CYA chaplain testified at the sentencing hearing that respondent’s conversion appeared genuine. The chaplain, describing respondent as “salvageable,” expressed hope that respondent would contribute to prison ministries if given a life sentence. Id., at 79–83. An assistant chaplain similarly testified that, based on past experience, respondent likely would be adept at counseling other prisoners to avoid the mistakes he had made when they leave prison. Id., at 95–96. And respondent’s Christian sponsors testified he was like a son to them and had been a positive influence on their own son. They also indicated he had participated in various activities at their church. Id., at 99–103, 110–114. After respondent presented his mitigating evidence, the parties made closing arguments discussing respondent’s mitigating evidence and how the jury should consider it. Respondent was also allowed to provide his own statement. The trial judge included in his instructions the disputed factor (k) language, an instruction that has since been amended, see Cal. Jury Instr., Crim., No. 8.85(k) (2005). II In two earlier cases this Court considered a constitutional challenge to the factor (k) instruction. See Brown v. Payton, supra; Boyde v. California, 494 U. S. 370 (1990). In Boyde, the Court rejected a claim that factor (k), with its focus on circumstances “ ‘extenuat[ing] the gravity of the crime,’ ” precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant’s background and character. Id., at 377–378, 386. The “proper inquiry,” the Court explained, “is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id., at 380. Since the defendant in Boyde “had an opportunity through factor (k) to argue that his background and character ‘extenuated’ or ‘excused’ the seriousness of the crime,” the Court saw “no reason to believe that reasonable jurors would resist the view, ‘long held by society,’ that in an appropriate case such evidence would counsel imposition of a sentence less than death.” Id., at 382 (citing Penry v. Lynaugh, 492 U. S. 302, 319 (1989)). During the sentencing phase in Boyde, moreover, the defense had presented extensive evidence regarding background and character, so construing factor (k) to preclude consideration of that evidence would have required the jurors not only to believe that “the court’s instructions transformed all of this ‘favorable testimony into a virtual charade,’ ” 494 U. S., at 383 (quoting California v. Brown, 479 U. S. 538, 542 (1987)), but also to disregard another instruction requiring the jury to “ ‘consider all of the evidence which has been received during any part of the trial of this case,’ ” 494 U. S., at 383. In Payton, the Court again evaluated arguments that factor (k) barred consideration of constitutionally relevant evidence—this time, evidence relating to postcrime rehabilitation, rather than precrime background and character. See 544 U. S., at 135–136. Payton did not come to this Court, as had Boyde, on direct review, but rather by federal habeas petition subject to AEDPA. Relief was available only if “the state court’s adjudication of the claim ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Payton, supra, at 141 (quoting 28 U. S. C. §2254(d)(1)). Although the prosecutor in Payton had argued to the jury—incorrectly—that factor (k) did not permit consideration of postcrime rehabilitation evidence, this Court concluded that the California Supreme Court reasonably applied Boyde in finding no Eighth Amendment violation. 544 U. S., at 142, 146–147. Accepting the prosecutor’s reading would have required “the surprising conclusion that remorse could never serve to lessen or excuse a crime.” Id., at 142. Furthermore, countering any misimpression created by the prosecution’s argument, the defense in Payton had presented extensive evidence and argument regarding a postcrime religious conversion and other good behavior. The trial court had instructed the jury to consider all evidence admitted “ ‘during any part of the trial in this case, except as you may be hereafter instructed,’ ” and the prosecution itself “devoted substantial attention to discounting [the postcrime evidence’s] importance as compared to the aggravating factors.” Id., at 145–146. Hence, the state court in Payton could reasonably have concluded that, as in Boyde, there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had heard. 544 U. S., at 147. III As the Court directed in Boyde, we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” 494 U. S., at 380. Here, as in Payton, respondent argues that factor (k) prevented the jury from giving effect to his forward-looking evidence. And, as in Payton, respondent’s case comes to this Court in federal habeas proceedings collaterally attacking the state court’s ruling. Unlike in Payton, however, the federal petition in this case was filed before AEDPA’s effective date. AEDPA and its deferential standards of review are thus inapplicable. See Woodford v. Garceau, 538 U. S. 202, 210 (2003). The Court of Appeals distinguished Payton on this ground. See 414 F. 3d, at 1101–1102. It was mistaken, however, to find a “reasonable probability” that the jury did not consider respondent’s future potential. Id., at 1138. A The Court of Appeals erred by adopting a narrow and, we conclude, an unrealistic interpretation of factor (k). “Most naturally read,” the Court of Appeals reasoned, “this instruction allows the jury to consider evidence that bears upon the commission of the crime by the defendant and excuses or mitigates his culpability for the offense.” Id., at 1134. As both Boyde and Payton explain, however, this interpretation is too confined. “The instruction did not … limit the jury’s consideration to ‘any other circumstance of the crime which extenuates the gravity of the crime.’ The jury was directed to consider any other circumstance that might excuse the crime.” Boyde, supra, at 382; see also Payton, supra, at 141–142. And just as precrime background and character (Boyde) and postcrime rehabilitation (Payton) may “extenuat[e] the gravity of the crime,” so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty. Cf. Skipper, 476 U. S., at 4–5 (explaining that while inferences regarding future conduct do not “relate specifically to [a defendant’s] culpability for the crime he committed,” those inferences are “ ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death’ ” (quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion))). The Court of Appeals failed to heed the full import of Payton’s holding, a holding that has significance even where AEDPA is inapplicable. Payton indicated that reading factor (k) to preclude consideration of postcrime evidence would require “the surprising conclusion that remorse could never serve to lessen or excuse a crime.” 544 U. S., at 142. So, too, would it be counterintuitive if a defendant’s capacity to redeem himself through good works could not extenuate his offense and render him less deserving of a death sentence. In any event, since respondent sought to extrapolate future behavior from precrime conduct, his mitigation theory was more analogous to the good-character evidence examined in Boyde and held to fall within factor (k)’s purview. See 494 U. S., at 381 (describing the evidence at issue as including evidence of the defendant’s “strength of character”). Both types of evidence suggest the crime stemmed more from adverse circumstances than from an irredeemable character. See 414 F. 3d, at 1141–1142 (O’Scannlain, J., concurring in part and dissenting in part); cf. Johnson v. Texas, 509 U. S. 350, 369 (1993) (noting that the “forward-looking” future-dangerousness inquiry “is not independent of an assessment of personal culpability”). B Our interpretation of factor (k) is the one most consistent with the evidence presented to the jury, the parties’ closing arguments, and the other instructions provided by the trial court. Each of these will be discussed in turn. As the Court of Appeals recognized, future-conduct evidence was central to the mitigation case presented by the defense. See 414 F. 3d, at 1134. Indeed, although the defense also adduced evidence of a troubled upbringing, respondent testified that he could not use his difficult life “as a crutch to say I am in a situation right now, I’m here now because of that.” App. 40. Given this assertion, and considering the extensive forward-looking evidence presented at sentencing—evidence including testimony from two prison chaplains, respondent’s church sponsors, and respondent himself—the jurors could have disregarded respondent’s future potential only if they drew the unlikely inference that “the court’s instructions transformed all of this ‘favorable testimony into a virtual charade,’ ” Boyde, supra, at 383 (quoting Brown, 479 U. S., at 542). It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented (and both counsel later discussed) his mitigating evidence in open court. Arguments by the prosecution and the defense assumed the evidence was relevant. The prosecutor initially discussed the various factors that were to guide the jury. He referred to factor (k) as “a catchall.” App. 153. He then discussed respondent’s religious experience in some detail. With respect to whether this experience fit within factor (k), he indicated: “I’m not sure it really fits in there. I’m not sure it really fits in any of them. But I think it appears to be a proper subject of consideration.” Id., at 154. These seemingly contradictory statements are explained by the prosecutor’s following comments. The prosecutor suggested (quite understandably on the record) that respondent’s religious evidence was weak. He stated: “You know, first of all, it’s no secret that the evidence upon which the defendant’s religious experience rests is somewhat shaky.” Ibid. He also opined that the experience had to be taken “with a grain of salt.” Id., at 155. The jury would have realized that, when the prosecutor suggested respondent’s religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury’s ability to consider it. After all, he thought religion was “a proper subject of consideration.” Id., at 154. The prosecutor then discussed how the jury should weigh respondent’s “religious awakening”: “I suppose you can say it would be appropriate because—in this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There’s something to that. “On the other hand, the fact that someone has religion as opposed to someone doesn’t should be no grounds for either giving or withholding life. I mean let’s turn it around and look at the other side of the coin. Suppose someone said he didn’t belong to a church and didn’t talk to a minister. Would that man deserve to die merely because of that? So if he says he has religion, does he deserve the other penalty, life? I don’t think that that should be an influencing factor at all in that respect. I don’t think the law contemplates that and I don’t think it’s right.” Id., at 155. These remarks confirmed to the jury that it should analyze respondent’s future potential, his future “value to the community.” Ibid. This is what respondent himself wanted it to do. And while the prosecutor commented that the law did not contemplate jury consideration of respondent’s religious conversion, respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, respondent wanted to use this religious evidence to demonstrate his future “value to the community,” not to illustrate his past religious awakening. Nothing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent’s religious conversion, though surely the jury could discount it; and nothing the prosecutor said would have led the jury to think it could not consider respondent’s future potential, especially since he indicated that this is exactly what the jury had “to weigh” in its deliberation. Ibid. After the prosecutor concluded his arguments, the trial judge allowed respondent to speak on his own behalf. Respondent, while not showing any remorse, suggested that life imprisonment offered “an opportunity to achieve goals and try to better yourself.” Id., at 163. He also stated: “I myself would really like to have my life and try to improve myself.” Id., at 164. Respondent’s personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose. Defense counsel’s closing arguments confirm this analysis. To be sure, commenting on the mitigating evidence, he initially indicated: “I’m not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in.” Id., at 166. Read in context defense counsel’s remarks did not imply the jury should ignore the mitigating evidence. Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cf. Cal. Penal Code Ann. §190.3(k) (“[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime”). That defense counsel did, in fact, want the jury to take into account respondent’s future potential became manifest near the end of his argument. He suggested that the “people who came in here [and] told you about [respondent]” provided the jury with “a game plan” for what respondent could do with his life. App. 170. He continued: “We’re just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can.” Ibid. This would have left the jury believing it could and should contemplate respondent’s potential. Other instructions from the trial court make it quite implausible that the jury would deem itself foreclosed from considering respondent’s full case in mitigation. Before enumerating specific factors for consideration—factors including the circumstances of the crime, the defendant’s age, and “[t]he presence or absence of any prior felony conviction,” id., at 184, as well as the factor (k) catchall—the judge told the jury: “In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed.” Id., at 183. After listing the factors, he indicated: “After having heard all of the evidence and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.” Id., at 185. The judge then gave a supplemental instruction regarding aggravating and mitigating factors: “I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case. “However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. Belmontes. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case.” Id., at 185–186. Given the evidence and arguments presented to the jury, these instructions eliminate any reasonable likelihood that a juror would consider respondent’s future prospects to be beyond the bounds of proper consideration. The judge told the jury to consider “all of the evidence,” and “all of the evidence” included respondent’s forward-looking mitigation case. While the judge did end his broad command to appraise all the evidence with the qualifier “except as you may be hereafter instructed,” id., at 183, he did not later instruct the jury that it should disregard respondent’s future potential in prison. The jury could not fairly read the limitation in the instruction to apply to respondent’s central mitigation theory. By contrast, in response to a juror’s question, the trial judge specifically instructed the jury not to consider whether respondent could receive psychiatric treatment while in prison. The sharp contrast between the court’s instruction on aggravation (that only enumerated factors could be considered) and its instruction on mitigation (that listed factors were “merely … examples,” id., at 186) made it clear that the jury was to take a broad view of mitigating evidence. Coming back to back, the instructions conveyed the message that the jury should weigh the finite aggravators against the potentially infinite mitigators. That the trial judge told the jury to “pay careful attention” to the listed mitigating factors, ibid., moreover, did not compel the jury to give them sole consideration. For this to be the case, the jury would have had to fail to take the judge at his word. The judge did not advise the jury to pay exclusive attention to the listed mitigating circumstances, and he had told the jury that these circumstances were simply examples. It is implausible that the jury supposed that past deeds pointing to a constructive future could not “extenuat[e] the gravity of the crime,” as required by factor (k), much less that such evidence could not be considered at all. Boyde concludes that in jury deliberations “commonsense understanding of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hairsplitting.” 494 U. S., at 381. Here, far from encouraging the jury to ignore the defense’s central evidence, the instructions supported giving it due weight. In concluding otherwise, the Court of Appeals cited queries from some of the jurors as evidence of confusion. Although the jury’s initial question is not in the record, it appeared to ask the judge about the consequences of failing to reach a unanimous verdict. Cf. 414 F. 3d, at 1135. In response, the judge reread portions of the instructions and stated that “all 12 jurors must agree, if you can.” App. 190. Before the judge sent the jury back for further deliberation, the following exchange took place: “JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing? “THE COURT: That was the listing, yes, ma’am. “JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet? “THE COURT: That is right. It is a balancing process. Mr. Meyer? “JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other? “THE COURT: No. It is not that. “JUROR MEYER: It is an either/or situation? “THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you. “JUROR HAILSTONE: Could I ask a question? I don’t know if it is permissible. Is it possible that he could have psychiatric treatment during this time? “THE COURT: That is something you cannot consider in making your decision.” Id., at 191. The Court of Appeals decided Juror Hern’s questions indicated she thought (incorrectly) that only listed mitigating factors were on the table—an error, in the Court of Appeals’ view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was relevant. 414 F. 3d, at 1136. The Court of Appeals further supposed the response to Juror Hailstone’s question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. Id., at 1137. The Court of Appeals’ analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme Court observed on direct review, it is not necessarily the correct one, see Belmontes, 45 Cal. 3d, at 804, 755 P. 2d, at 344. It is at least as likely that the juror was simply asking for clarification about California’s overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. See Cal. Penal Code Ann. §190.3 (providing that, “[i]n determining the penalty, the trier of fact shall take into account” any relevant listed factors); see generally Tuilaepa v. California, 512 U. S. 967, 978–979 (1994) (noting that the §190.3 sentencing factors “do not instruct the sentencer how to weigh any of the facts it finds in deciding upon the ultimate sentence”). Even assuming the Court of Appeals correctly interpreted Juror Hern’s questions, the court’s conclusion that this juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence could not fall within factor (k). As discussed earlier, nothing barred the jury from viewing respondent’s future prospects as “extenuat[ing] the gravity of the crime,” so nothing barred it from considering such evidence under the rubric of the “listing.” As for Juror Hailstone’s psychiatric-care question, this inquiry shows that, if anything, the jurors were considering respondent’s potential. The trial court’s response, far from implying a broad prohibition on forward-looking inferences, was readily explicable by the absence of any evidence in the record regarding psychiatric care. In view of our analysis and disposition in this case it is unnecessary to address an argument for reversing the Court of Appeals based on the Court’s holding in Johnson v. Texas, 509 U. S. 350 (1993), a subject raised by Judge O’Scannlain in his separate opinion in the Court of Appeals. See 414 F. 3d, at 1141–42 (opinion concurring in part and dissenting in part). IV In this case, as in Boyde and as in Payton, the jury heard mitigating evidence, the trial court directed the jury to consider all the evidence presented, and the parties addressed the mitigating evidence in their closing arguments. This Court’s cases establish, as a general rule, that a jury in such circumstances is not reasonably likely to believe itself barred from considering the defense’s evidence as a factor “extenuat[ing] the gravity of the crime.” The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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551.US.96
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Respondent PACE International Union represented employees covered by single-employer defined-benefit pension plans sponsored and administered by Crown, which had filed for bankruptcy. Crown rejected the union’s proposal to terminate the plans by merging them with the union’s own multiemployer plan, opting instead for a standard termination through the purchase of annuities, which would allow Crown to retain a $5 million reversion after satisfying its obligations to plan participants and beneficiaries. The union and respondent plan participants (hereinafter, collectively, PACE) filed an adversary action in the Bankruptcy Court, alleging that Crown’s directors had breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. §1001 et seq., by neglecting to give diligent consideration to PACE’s merger proposal. The court ruled for PACE, and petitioner bankruptcy trustee appealed to the District Court, which affirmed in relevant part, as did the Ninth Circuit. The Ninth Circuit acknowledged that the decision to terminate a pension plan is a business decision not subject to ERISA’s fiduciary obligations, but reasoned that the implementation of a termination decision is fiduciary in nature. It then determined that merger was a permissible termination method and that Crown therefore had a fiduciary obligation to consider PACE’s merger proposal seriously, which it had failed to do. Held: Crown did not breach its fiduciary obligations in failing to consider PACE’s merger proposal because merger is not a permissible form of plan termination under ERISA. Section §1341(b)(3)(A) provides: “In … any final distribution of assets pursuant to … standard termination … , the plan administrator shall … (i) purchase irrevocable commitments from an insurer to provide all benefit liabilities under the plan, or … (ii) in accordance with the provisions of the plan and any applicable regulations, otherwise fully provide all benefit liabilities under the plan.” The parties agree that clause (i) refers to the purchase of annuities, and that clause (ii) allows for lump-sum distributions. These are by far the most common distribution methods. To decide that merger is also a permissible method, the Court would have to disagree with the Pension Benefit Guaranty Corporation (PBGC), the entity administering the federal insurance program that protects plan benefits, which takes the position that §1341(b)(3)(A) does not permit merger as a method of termination because merger is an alternative to (rather than an example of) plan termination. The Court has traditionally deferred to the PBGC when interpreting ERISA. Here, the Court believes that the PBGC’s policy is based upon a construction of the statute that is permissible, and indeed the more plausible. PACE argues that §1341(b)(3)(A)(ii)’s residual provision referring to an asset distribution that “otherwise fully provide[s] all benefit liabilities under the plan” covers merger because annuities (covered by §1341(b)(3)(A)(i)) are an example of a permissible means of “provid[ing] . . . benefit liabilities,” and merger is the legal equivalent of annuitization. Even assuming that PACE is right about the meaning of the word “otherwise,” the clarity necessary to disregard the PBGC’s considered views is lacking for three reasons. First, terminating a plan through purchase of annuities formally severs ERISA’s applicability to plan assets and employer obligations, whereas merging the Crown plans into PACE’s multiemployer plan would result in the former plans’ assets remaining within ERISA’s purview, where they could be used to satisfy the benefit liabilities of the multiemployer plan’s other participants and beneficiaries. Second, although ERISA expressly allows the employer to (under certain circumstances) recoup surplus funds in a standard termination, §1344(d)(1), (3), as Crown sought to do here, merger would preclude the receipt of such funds by reason of §1103(c), which prohibits employers from misappropriating plan assets for their own benefit. Third, merger is nowhere mentioned in §1341, but is instead dealt with in an entirely different set of statutory sections setting forth entirely different rules and procedures, §§1058, 1411, and 1412. PACE’s argument that the procedural differences could be reconciled by requiring a plan sponsor intending to use merger as a termination method to follow the rules for both merger and termination is condemned by the confusion it would engender and by the fact that it has no apparent basis in ERISA. Even from a policy standpoint, the PBGC’s construction of the statute is eminently reasonable because termination by merger could have detrimental consequences for the participants and beneficiaries of a single-employer plan, as well as for plan sponsors. Pp. 4–14. 427 F. 3d 668, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court.
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We decide in this case whether an employer that sponsors and administers a single-employer defined-benefit pension plan has a fiduciary obligation under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., to consider a merger with a multiemployer plan as a method of terminating the plan. I Crown Paper and its parent entity, Crown Vantage (the two hereinafter referred to in the singular as Crown), employed 2,600 persons in seven paper mills. PACE International Union, a respondent here, represented employees covered by 17 of Crown’s defined-benefit pension plans. A defined-benefit plan, “as its name implies, is one where the employee, upon retirement, is entitled to a fixed periodic payment.” Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 154 (1993). In such a plan, the employer generally shoulders the investment risk. It is the employer who must make up for any deficits, but also the employer who enjoys the fruits (whether in the form of lower plan contributions or sometimes a reversion of assets) if plan investments perform beyond expectations. See Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–440 (1999). In this case, Crown served as both plan sponsor and plan administrator. In March 2000, Crown filed for bankruptcy and proceeded to liquidate its assets. ERISA allows employers to terminate their pension plans voluntarily, see Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 638 (1990), and in the summer of 2001, Crown began to consider a “standard termination,” a condition of which is that the terminated plans have sufficient assets to cover benefit liabilities. §1341(b)(1)(D); id., at 638–639. Crown focused in particular on the possibility of a standard termination through purchase of annuities, one statutorily specified method of plan termination. See §1341(b)(3)(A)(i). PACE, however, had ideas of its own. It interjected itself into Crown’s termination discussions and proposed that, rather than buy annuities, Crown instead merge the plans covering PACE union members with the PACE Industrial Union Management Pension Fund (PIUMPF), a multiemployer or “Taft-Hartley” plan. See §1002(37). Under the terms of the PACE-proposed agreement, Crown would be required to convey all plan assets to PIUMPF; PIUMPF would assume all plan liabilities. Crown took PACE’s merger offer under advisement. As it reviewed annuitization bids, however, it discovered that it had overfunded certain of its pension plans, so that purchasing annuities would allow it to retain a projected $5 million reversion for its creditors after satisfying its obligations to plan participants and beneficiaries. See §1344(d)(1) (providing for reversion upon plan termination where certain conditions are met). Under PACE’s merger proposal, by contrast, the $5 million would go to PIUMPF. What is more, the Pension Benefit Guaranty Corporation (PBGC), which administers an insurance program to protect plan benefits, agreed to withdraw the proofs of claim it had filed against Crown in the bankruptcy proceedings if Crown went ahead with an annuity purchase. Crown had evidently heard enough. It consolidated 12 of its pension plans[Footnote 1] into a single plan, and terminated that plan through the purchase of an $84 million annuity. That annuity fully satisfied Crown’s obligations to plan participants and beneficiaries and allowed Crown to reap the $5 million reversion in surplus funds. PACE and two plan participants, also respondents here (we will refer to all respondents collectively as PACE), thereafter filed an adversary action against Crown in the Bankruptcy Court, alleging that Crown’s directors had breached their fiduciary duties under ERISA by neglecting to give diligent consideration to PACE’s merger proposal. The Bankruptcy Court sided with PACE. It found that the decision whether to purchase annuities or merge with PIUMPF was a fiduciary decision, and that Crown had breached its fiduciary obligations by giving insufficient study to the PIUMPF proposal. Rather than ordering Crown to cancel its annuity (which would have resulted in a substantial penalty payable to Crown’s annuity provider), the Bankruptcy Court instead issued a preliminary injunction preventing Crown from obtaining the $5 million reversion. It subsequently approved a distribution of that reversion for the benefit of plan participants and beneficiaries, which distribution was stayed pending appeal.[Footnote 2] Petitioner, the trustee of the Crown bankruptcy estates, appealed the Bankruptcy-Court decision to the District Court, which affirmed in relevant part, as did the Court of Appeals for the Ninth Circuit. The Ninth Circuit acknowledged that “the decision to terminate a pension plan is a business decision not subject to ERISA’s fiduciary obligations,” but reasoned that “the implementation of a decision to terminate” is fiduciary in nature. 427 F. 3d 668, 673 (2005). It then determined that merger was a permissible means of plan termination and that Crown therefore had a fiduciary obligation to consider PACE’s merger proposal seriously, which it had failed to do. Petitioner thereafter sought rehearing in the Court of Appeals, this time with the support of the PBGC and the Department of Labor, who agreed with petitioner that the Ninth Circuit’s judgment was in error. The Ninth Circuit held to its original decision, and we granted certiorari. 549 U. S. ___ (2007). II Crown’s operation of its defined-benefit pension plans placed it in dual roles as plan sponsor and plan administrator; an employer’s fiduciary duties under ERISA are implicated only when it acts in the latter capacity. Which hat the employer is proverbially wearing depends upon the nature of the function performed, see Hughes Aircraft Co., supra, at 444, and is an inquiry that is aided by the common law of trusts which serves as ERISA’s backdrop, see Pegram v. Herdrich, 530 U. S. 211, 224 (2000); Lockheed Corp. v. Spink, 517 U. S. 882, 890 (1996). It is well established in this Court’s cases that an employer’s decision whether to terminate an ERISA plan is a settlor function immune from ERISA’s fiduciary obligations. See, e.g., ibid.; Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 78 (1995). And because “decision[s] regarding the form or structure” of a plan are generally settlor functions, Hughes Aircraft Co., 525 U. S., at 444, PACE acknowledges that the decision to merge plans is “normally [a] plan sponsor decisio[n]” as well. Brief for Respondents 13, n. 5, 20–21; see also Malia v. General Electric Co., 23 F. 3d 828, 833 (CA3 1994) (holding that employer’s decision to merge plans “d[id] not invoke the fiduciary duty provisions of ERISA”). But PACE says that its proposed merger was different, because the PIUMPF merger represented a method of terminating the Crown plans. And just as ERISA imposed on Crown a fiduciary obligation in its selection of an appropriate annuity provider when terminating through annuities, see 29 CFR §§2509.95–1, 4041.28(c)(3) (2006), so too, PACE argues, did it require Crown to consider merger. The idea that the decision whether to merge could switch from a settlor to a fiduciary function depending upon the context in which the merger proposal is raised is an odd one. But once it is realized that a merger is simply a transfer of assets and liabilities, PACE’s argument becomes somewhat more plausible: The purchase of an annuity is akin to a transfer of assets and liabilities (to an insurance company), and if Crown was subject to fiduciary duties in selecting an annuity provider, why could it automatically disregard PIUMPF simply because PIUMPF happened to be a multiemployer plan rather than an insurer? There is, however, an antecedent question. In order to affirm the judgment below, we would have to conclude (as the Ninth Circuit did) that merger is, in the first place, a permissible form of plan termination under ERISA. That requires us to delve into the statute’s provisions for plan termination. ERISA sets forth the exclusive procedures for the standard termination of single-employer pension plans. §1341(a)(1); Hughes Aircraft Co., supra, at 446. Those procedures are exhaustive, setting detailed rules for, inter alia, notice by the plan to affected parties, §1341(a)(2), review by the PBGC, §1341(b)(2)(A), (C), and final distribution of plan funds, §1341(b)(2)(D), §1344. See generally E. Veal & E. Mackiewicz, Pension Plan Terminations 43–61 (2d ed. 1998) (hereinafter Veal & Mackiewicz). At issue in this case is §1341(b)(3)(A), the provision of ERISA setting forth the permissible methods of terminating a single-employer plan and distributing plan assets to participants and beneficiaries. Section 1341(b)(3)(A) provides as follows: “In connection with any final distribution of assets pursuant to the standard termination of the plan under this subsection, the plan administrator shall distribute the assets in accordance with section 1344 of this title. In distributing such assets, the plan administrator shall— “(i) purchase irrevocable commitments from an insurer to provide all benefit liabilities under the plan, or “(ii) in accordance with the provisions of the plan and any applicable regulations, otherwise fully provide all benefit liabilities under the plan. . . .” The PBGC’s regulations impose in substance the same requirements. See 29 CFR §4041.28(c)(1). Title 29 U. S. C. §1344, which is referred to in §1341(b)(3)(A), sets forth a specific order of priority for asset distribution, including (under certain circumstances) reversions of excess funds to the plan sponsor, see §1344(d)(1). The parties to this case all agree that §1341(b)(3)(A)(i) refers to the purchase of annuities, see 29 CFR §4001.2 (defining “irrevocable commitment”), and that §1341(b)(3)(A)(ii) allows for lump-sum distributions at present discounted value (including rollovers into individual retirement accounts). As PACE concedes, purchase of annuity contracts and lump-sum payments are “by far the most common distribution methods.” Brief for Respondents 45; see also Veal & Mackiewicz 72–73 (“The basic alternatives are the purchase of annuity contracts or some form of lump-sum cashout”). To affirm the Ninth Circuit, we would have to decide that merger is a permissible method as well.[Footnote 3] And we would have to do that over the objection of the PBGC, which (joined by the Department of Labor) disagrees with the Ninth Circuit, taking the position that §1341(b)(3)(A) does not permit merger as a method of termination because (in its view) merger is an alternative to (rather than an example of) plan termination. See Brief for United States as Amicus Curiae 8, 17–30. We have traditionally deferred to the PBGC when interpreting ERISA, for “to attempt to answer these questions without the views of the agencies responsible for enforcing ERISA, would be to embar[k] upon a voyage without a compass.” Mead Corp. v. Tilley, 490 U. S. 714, 722, 725–726 (1989) (internal quotation marks omitted); see also LTV Corp., 496 U. S., at 648, 651. In reviewing the judgment below, we thus must examine “whether the PBGC’s policy is based upon a permissible construction of the statute.” Id., at 648.[Footnote 4] We believe it is. PACE has “failed to persuade us that the PBGC’s views are unreasonable,” Mead Corp., supra, at 725. At the outset, it must be acknowledged that the statute, with its general residual clause in §1341(b)(3)(A)(ii), is potentially more embracing of alternative methods of plan termination (whatever they may be) than longstanding ERISA practice, which appears to have employed almost exclusively annuities and lump-sum payments. But we think that the statutory text need not be read to include mergers, and indeed that the PBGC offers the better reading in excluding them. Most obviously, Congress nowhere expressly provided for merger as a permissible means of termination. Merger is not mentioned in §1341(b)(3)(A), much less in any of §1341’s many subsections. Indeed, merger is expressly provided for in an entirely separate set of statutory sections (of which more in a moment, see infra, at 11–13). PACE nevertheless maintains that merger is clearly covered under §1341(b)(3)(A)(ii)’s residual clause, which refers to a distribution of assets that “otherwise fully provide[s] all benefit liabilities under the plan.” By PACE’s reasoning, annuities are covered under §1341(b)(3)(A)(i); annuities are—by virtue of the word “otherwise”—an example of a means by which a plan may “fully provide all benefit liabilities under the plan,” §1341(b)(3)(A)(ii); and therefore, “at the least,” any method of termination that is the “legal equivalent” of annuitization is permitted, Brief for Respondents 23. Merger, PACE argues, is such a legal equivalent. We do not find the statute so clear. Even assuming that PACE is right about “otherwise”—that the word indicates that annuities are one example of satisfying the residual clause in §1341(b)(3)(A)(ii)—we still do not find mergers covered with the clarity necessary to disregard the PBGC’s considered views. Surely the phrase “otherwise fully provide all benefit liabilities under the plan” is not without some teeth. And we think it would be reasonable for the PBGC to determine both that merger is not like the purchase of annuities in its ability to “fully provide all benefit liabilities under the plan,” and that the statute’s distinct treatment of merger and termination provides clear evidence that one is not an example of the other. Three points strike us as especially persuasive in these regards. First, terminating a plan through purchase of annuities (like terminating through distribution of lump-sum payments) formally severs the applicability of ERISA to plan assets and employer obligations. Upon purchasing annuities, the employer is no longer subject to ERISA’s multitudinous requirements, such as (to name just one) payment of insurance premiums to the PBGC, §1307(a). And the PBGC is likewise no longer liable for the deficiency in the event that the plan becomes insolvent; there are no more benefits for it to guarantee. The assets of the plan are wholly removed from the ERISA system, and plan participants and beneficiaries must rely primarily (if not exclusively) on state-contract remedies if they do not receive proper payments or are otherwise denied access to their funds. Further, from the standpoint of the participants and beneficiaries, the risk associated with an annuity relates solely to the solvency of an insurance company, and not the performance of the merged plan’s investments. Merger is fundamentally different: it represents a continuation rather than a cessation of the ERISA regime. If Crown were to have merged its pension plans into PIUMPF, the plan assets would have been combined with the assets of the multiemployer plan, where they could then be used to satisfy the benefit liabilities of participants and beneficiaries other than those from the original Crown plans. Those assets would remain within ERISA’s purview, the PBGC would maintain responsibility for them, and if Crown continued to employ the plan participants it too would remain subject to ERISA. Finally, plan participants and beneficiaries would have their recourse not through state-contract law, but through the ERISA system, just as they had prior to merger. Second, in a standard termination ERISA allows the employer to (under certain circumstances) recoup surplus funds, §1344(d)(1), (3), as Crown sought to do here. But ERISA forbids employers to obtain a reversion in the absence of a termination: “A valid plan termination is a prerequisite to a reversion of surplus plan assets to an employer.” App. to Brief in Opposition 15a (PBGC Opinion Letter 85–25 (Oct. 11, 1985); see also Veal & Mackiewicz 164–165. Crown could not simply extract the $5 million surplus from its plans, nor could it have done so once those assets had transferred to PIUMPF. This would have run up against ERISA’s anti-inurement provision, which prohibits employers from misappropriating plan assets for their own benefit. See §1103(c). Consequently, we think the PBGC was entirely reasonable in declining to recognize as a form of termination a mechanism that would preclude the receipt of surplus funds, which is specifically authorized upon termination.[Footnote 5] Third, the structure of ERISA amply (if not conclusively) supports the conclusion that §1341(b)(3)(A)(ii) does not cover merger. As noted above, merger is nowhere mentioned in §1341, and is instead dealt with in an entirely different set of statutory sections setting forth entirely different rules and procedures. Compare §1058 (general merger provision), §1411 (mergers between multiemployer plans), and §1412 (mergers between multiemployer and single-employer plans) with §1341 (termination of single-employer plans), §1341a (termination of multiemployer plans); see generally Veal & Mackiewicz 31–40 (describing merger as an alternative to plan termination). Section 1058, the general merger provision, in fact quite clearly contemplates that merger and termination are not one and the same, forbidding merger “unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the merger . . . which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger . . . (if the plan had then terminated).” (Emphasis added.) As for the different rules and procedures governing termination and merger: Most critically, plans seeking to terminate must provide advance notice to the PBGC, as well as extensive actuarial information. §1341(b)(2)(A). The PBGC has the authority to halt the termination if it determines that plan assets are insufficient to cover plan liabilities. §1341(b)(2)(C). Merger, by contrast, involves considerably less PBGC oversight, and the PBGC has no similar ability to cancel, see Brief for United States as Amicus Curiae 24. And the rules governing notice to the PBGC are either different or nonexistent. Section 1412, the provision governing merger between a single and multiemployer plan (the form of merger contemplated by PACE’s proposal) makes no mention of early notice to the PBGC. And while mergers between multiemployer plans do require 120-days advance notice, §1411(b)(1), this still differs from the general notice provision for termination of single-employer plans, which requires notice to the PBGC “[a]s soon as practicable” after notice is given to affected parties, §1341(b)(2)(A). Relatedly, §1341(a)(2) also requires that, in a standard termination, written notice to plan participants and beneficiaries include “any related additional information required in regulations of the [PBGC].” Those regulations require, among other things, that the plan inform participants and beneficiaries that upon distribution, “the PBGC no longer guarantees . . . plan benefits.” 29 CFR §4041.23(b)(9). (This requirement of course has no relevance to a merger, because after a merger the PBGC continues to guarantee plan benefits.) PACE believes that these procedural differences can be ironed over rather easily. It insists: “Many plan mergers take place without intent to terminate a plan; in those cases, the requirements for plan merger can be followed without consulting the requirements for plan termination. Conversely, many plan terminations take place without an associated merger; in those cases there is no need to consult the requirements for mergers. But if a plan sponsor intends to use merger as a method of implementing a plan termination, it simply must follow the rules for both merger and termination.” Brief for Respondents 36. PACE similarly explains that while the PBGC does not approve “ordinary merger[s],” PBGC approval would be necessary when a merger is designed to terminate a plan. Id., at 37. The confusion invited by PACE’s proposed framework is alone enough to condemn it. How could a plan be sure that it was in one box rather than the other? To avoid the risk of liability, should it simply follow both sets of rules all of the time? PACE’s proposal is flawed for another reason as well: It has no apparent basis in the statute. The separate provisions governing termination and merger quite clearly treat the two as wholly different transactions, with no exception for the case where merger is used for termination. For all of the foregoing reasons, we believe that the PBGC’s construction of the statute is a permissible one, and indeed the more plausible. Crown did not breach its fiduciary obligations in failing to consider PACE’s merger proposal because merger is not a permissible form of termination. Even from a policy standpoint, the PBGC’s choice is an eminently reasonable one, since termination by merger could have detrimental consequences for plan beneficiaries and plan sponsors alike. When a single-employer plan is merged into a multiemployer plan, the original participants and beneficiaries become dependent upon the financial well-being of the multiemployer plan and its contributing members. Assets of the single-employer plan (which in this case were capable of fully funding plan liabilities) may be used to satisfy commitments owed to other participants and beneficiaries of the (possibly underfunded) multiemployer plan. The PBGC believes that this arrangement creates added risk for participants and beneficiaries of the original plan, particularly in view of the lesser guarantees that the PBGC provides to multiemployer plans, compare §1322 with §1322a. See Brief for United States as Amicus Curiae 29, and n. 11. For employers, the ill effects are demonstrated by the facts of this very case: by diligently funding its pension plans, Crown became the bait for a union bent on obtaining a surplus that was rightfully Crown’s. All this after Crown purchased an annuity that none dispute was sufficient to satisfy its commitments to plan participants and beneficiaries. * * * We hold that merger is not a permissible method of terminating a single-employer defined-benefit pension plan. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Crown’s various other pension plans are not at issue in this case. Footnote 2 PACE now suggests that it would have been willing to agree to a merger in which Crown kept its surplus funds. Brief for Respondents 17, n. 7. But this is belied not only by the terms of the proposed merger agreement, but by the fact that PACE actively sought and obtained a preliminary injunction freezing Crown’s $5 million reversion. The Bankruptcy Court having rejected PACE’s request to undo the annuity contract, PACE has provided no reason for pursuing this litigation other than to obtain the $5 million that remained after Crown satisfied its benefit commitments. Moreover, as PACE concedes, whether the parties would have agreed to a merger arrangement that did not include the $5 million is “speculation.” Tr. of Oral Arg. 42. Footnote 3 We would not have to decide that question of statutory interpretation if Crown’s pension plans disallowed merger. Any method of termination permitted by §1341(b)(3)(A)(ii) must also be one that is “in accordance with the provisions of the plan.” Crown thus could have drafted its plan documents to limit the available methods of termination, so that merger was not permitted. Petitioner argued below that Crown had done just that. Though the District Court concluded that the plan terms allowed for merger, App. to Pet. for Cert. 47, the Ninth Circuit declined to consider the plan language because it held that petitioner had failed to preserve the argument in the Bankruptcy Court. Petitioner did not seek certiorari on the factbound issues of waiver and plan interpretation, and we accordingly do not address them here. Footnote 4 PACE argues that the PBGC took an inconsistent approach in several opinion letters from the 1980’s concerning the applicability of certain joint guidelines for asset reversions during complex termination transactions. See App. to Brief in Opposition 6a–9a (Opinion Letter 85–11 (May 14, 1985)); id., at 10a–13a (Opinion Letter 85–21 (Aug. 26, 1985)); id., at 14a–16a (Opinion Letter 85–25 (Oct. 11, 1985)). But insofar as the PBGC’s consistency is even relevant to whether we should accord deference to its presently held views, none of those letters so much as hints that the PBGC treated merger as a permissible form of plan termination. In fact, to the extent they even speak to the question, they clearly show the opposite. In Opinion Letter 85–25, for example, the PBGC explained that the joint guidelines for asset reversions did not apply to “a transfer [of assets and liabilities] from a single-employer plan to an ongoing multiemployer plan followed by the termination of the single-employer plan.” App. to Brief in Opposition 15a (emphasis added). By characterizing the proposed transaction as one that took place in two separate steps (merger and then termination), this letter fully contemplated that merger was not an example of plan termination. Footnote 5 This inability to recover surplus funds through a merger could not be remedied, as PACE now suggests, by structuring the transaction so that Crown provided to PIUMPF only assets sufficient to cover plan liabilities (effectively creating a spinoff from Crown’s plans and merging that spinoff plan with PIUMPF). Under that arrangement, Crown could indeed obtain the $5 million reversion—not, however, by reason of the merger-called-termination, but only by subsequent termination of the residual plan. See, e.g., App. to Brief in Opposition 14a–16a (PBGC Opinion Letter 85–25 (Oct. 11, 1985)) (describing such a sequence of transactions). This falls short of rendering the merger a termination permitting recovery of surplus funds. That a transfer of assets can occur in anticipation of a future termination does not render that transfer itself a termination.
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550.US.544
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The 1984 divestiture of the American Telephone & Telegraph Company’s (AT&T) local telephone business left a system of regional service monopolies, sometimes called Incumbent Local Exchange Carriers (ILECs), and a separate long-distance market from which the ILECs were excluded. The Telecommunications Act of 1996 withdrew approval of the ILECs’ monopolies, “fundamentally restructur[ing] local telephone markets” and “subject[ing] [ILECs] to a host of duties intended to facilitate market entry.” AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 371. It also authorized them to enter the long-distance market. “Central to the [new] scheme [was each ILEC’s] obligation … to share its network with” competitive local exchange carriers (CLECs).” Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 402. Respondents (hereinafter plaintiffs) represent a class of subscribers of local telephone and/or high speed Internet services in this action against petitioner ILECs for claimed violations of §1 of the Sherman Act, which prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” The complaint alleges that the ILECs conspired to restrain trade (1) by engaging in parallel conduct in their respective service areas to inhibit the growth of upstart CLECs; and (2) by agreeing to refrain from competing against one another, as indicated by their common failure to pursue attractive business opportunities in contiguous markets and by a statement by one ILEC’s chief executive officer that competing in another ILEC’s territory did not seem right. The District Court dismissed the complaint, concluding that parallel business conduct allegations, taken alone, do not state a claim under §1; plaintiffs must allege additional facts tending to exclude independent self-interested conduct as an explanation for the parallel actions. Reversing, the Second Circuit held that plaintiffs’ parallel conduct allegations were sufficient to withstand a motion to dismiss because the ILECs failed to show that there is no set of facts that would permit plaintiffs to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence. Held: 1. Stating a §1 claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. An allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Pp. 6–17. (a) Because §1 prohibits “only restraints effected by a contract, combination, or conspiracy,” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 775, “[t]he crucial question” is whether the challenged anticompetitive conduct “stem[s] from independent decision or from an agreement,” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537, 540. While a showing of parallel “business behavior is admissible circumstantial evidence from which” agreement may be inferred, it falls short of “conclusively establish[ing] agreement or … itself constitut[ing] a Sherman Act offense.” Id., at 540–541. The inadequacy of showing parallel conduct or interdependence, without more, mirrors the behavior’s ambiguity: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. Thus, this Court has hedged against false inferences from identical behavior at a number of points in the trial sequence, e.g., at the summary judgment stage, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574. Pp. 6–7. (b) This case presents the antecedent question of what a plaintiff must plead in order to state a §1 claim. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U. S. 41, 47. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true. Applying these general standards to a §1 claim, stating a claim requires a complaint with enough factual matter to suggest an agreement. Asking for plausible grounds does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects Rule 8(a)(2)’s threshold requirement that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” A parallel conduct allegation gets the §1 complaint close to stating a claim, but without further factual enhancement it stops short of the line between possibility and plausibility. The requirement of allegations suggesting an agreement serves the practical purpose of preventing a plaintiff with “ ‘a largely groundless claim’ ” from “ ‘tak[ing] up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.’ ” Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 347. It is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be expensive. That potential expense is obvious here, where plaintiffs represent a putative class of at least 90 percent of subscribers to local telephone or high-speed Internet service in an action against America’s largest telecommunications firms for unspecified instances of antitrust violations that allegedly occurred over a 7-year period. It is no answer to say that a claim just shy of plausible entitlement can be weeded out early in the discovery process, given the common lament that the success of judicial supervision in checking discovery abuse has been modest. Plaintiffs’ main argument against the plausibility standard at the pleading stage is its ostensible conflict with a literal reading of Conley’s statement construing Rule 8: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U. S., at 45–46. The “no set of facts” language has been questioned, criticized, and explained away long enough by courts and commentators, and is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Conley described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint’s survival. Pp. 7–17. 2. Under the plausibility standard, plaintiffs’ claim of conspiracy in restraint of trade comes up short. First, the complaint leaves no doubt that plaintiffs rest their §1 claim on descriptions of parallel conduct, not on any independent allegation of actual agreement among the ILECs. The nub of the complaint is the ILECs’ parallel behavior, and its sufficiency turns on the suggestions raised by this conduct when viewed in light of common economic experience. Nothing in the complaint invests either the action or inaction alleged with a plausible conspiracy suggestion. As to the ILECs’ supposed agreement to disobey the 1996 Act and thwart the CLECs’ attempts to compete, the District Court correctly found that nothing in the complaint intimates that resisting the upstarts was anything more than the natural, unilateral reaction of each ILEC intent on preserving its regional dominance. The complaint’s general collusion premise fails to answer the point that there was no need for joint encouragement to resist the 1996 Act, since each ILEC had reason to try and avoid dealing with CLECs and would have tried to keep them out, regardless of the other ILECs’ actions. Plaintiffs’ second conspiracy theory rests on the competitive reticence among the ILECs themselves in the wake of the 1996 Act to enter into their competitors’ territories, leaving the relevant market highly compartmentalized geographically, with minimal competition. This parallel conduct did not suggest conspiracy, not if history teaches anything. Monopoly was the norm in telecommunications, not the exception. Because the ILECs were born in that world, doubtless liked it, and surely knew the adage about him who lives by the sword, a natural explanation for the noncompetition is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same. Antitrust conspiracy was not suggested by the facts adduced under either theory of the complaint, which thus fails to state a valid §1 claim. This analysis does not run counter to Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, which held that “a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination.” Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. Pp. 18–24. 425 F. 3d 99, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, except as to Part IV.
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Liability under §1 of the Sherman Act, 15 U. S. C. §1, requires a “contract, combination … , or conspiracy, in restraint of trade or commerce.” The question in this putative class action is whether a §1 complaint can survive a motion to dismiss when it alleges that major telecommunications providers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, as distinct from identical, independent action. We hold that such a complaint should be dismissed. I The upshot of the 1984 divestiture of the American Telephone & Telegraph Company’s (AT&T) local telephone business was a system of regional service monopolies (variously called “Regional Bell Operating Companies,” “Baby Bells,” or “Incumbent Local Exchange Carriers” (ILECs)), and a separate, competitive market for long-distance service from which the ILECs were excluded. More than a decade later, Congress withdrew approval of the ILECs’ monopolies by enacting the Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, which “fundamentally restructure[d] local telephone markets” and “subject[ed] [ILECs] to a host of duties intended to facilitate market entry.” AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 371 (1999). In recompense, the 1996 Act set conditions for authorizing ILECs to enter the long-distance market. See 47 U. S. C. §271. “Central to the [new] scheme [was each ILEC’s] obligation … to share its network with competitors,” Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 402 (2004), which came to be known as “competitive local exchange carriers” (CLECs), Pet. for Cert. 6, n. 1. A CLEC could make use of an ILEC’s network in any of three ways: by (1) “purchas[ing] local telephone services at wholesale rates for resale to end users,” (2) “leas[ing] elements of the [ILEC’s] network ‘on an unbundled basis,’ ” or (3) “interconnect[ing] its own facilities with the [ILEC’s] network.” Iowa Utilities Bd., supra, at 371 (quoting 47 U. S. C. §251(c)). Owing to the “considerable expense and effort” required to make unbundled network elements available to rivals at wholesale prices, Trinko, supra, at 410, the ILECs vigorously litigated the scope of the sharing obligation imposed by the 1996 Act, with the result that the Federal Communications Commission (FCC) three times revised its regulations to narrow the range of network elements to be shared with the CLECs. See Covad Communications Co. v. FCC, 450 F. 3d 528, 533–534 (CADC 2006) (summarizing the 10-year-long regulatory struggle between the ILECs and CLECs). Respondents William Twombly and Lawrence Marcus (hereinafter plaintiffs) represent a putative class consisting of all “subscribers of local telephone and/or high speed internet services … from February 8, 1996 to present.” Amended Complaint in No. 02 CIV. 10220 (GEL) (SDNY) ¶53, App. 28 (hereinafter Complaint). In this action against petitioners, a group of ILECs,[Footnote 1] plaintiffs seek treble damages and declaratory and injunctive relief for claimed violations of §1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. §1, which prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” The complaint alleges that the ILECs conspired to restrain trade in two ways, each supposedly inflating charges for local telephone and high-speed Internet services. Plaintiffs say, first, that the ILECs “engaged in parallel conduct” in their respective service areas to inhibit the growth of upstart CLECs. Complaint ¶47, App. 23–26. Their actions allegedly included making unfair agreements with the CLECs for access to ILEC networks, providing inferior connections to the networks, overcharging, and billing in ways designed to sabotage the CLECs’ relations with their own customers. Ibid. According to the complaint, the ILECs’ “compelling common motivatio[n]” to thwart the CLECs’ competitive efforts naturally led them to form a conspiracy; “[h]ad any one [ILEC] not sought to prevent CLECs … from competing effectively . . . , the resulting greater competitive inroads into that [ILEC’s] territory would have revealed the degree to which competitive entry by CLECs would have been successful in the other territories in the absence of such conduct.” Id., ¶50, App. 26–27. Second, the complaint charges agreements by the ILECs to refrain from competing against one another. These are to be inferred from the ILECs’ common failure “meaningfully [to] pursu[e]” “attractive business opportunit[ies]” in contiguous markets where they possessed “substantial competitive advantages,” id., ¶¶40–41, App. 21–22, and from a statement of Richard Notebaert, chief executive officer (CEO) of the ILEC Qwest, that competing in the territory of another ILEC “ ‘might be a good way to turn a quick dollar but that doesn’t make it right,’ ” id., ¶42, App. 22. The complaint couches its ultimate allegations this way: “In the absence of any meaningful competition between the [ILECs] in one another’s markets, and in light of the parallel course of conduct that each engaged in to prevent competition from CLECs within their respective local telephone and/or high speed internet services markets and the other facts and market circumstances alleged above, Plaintiffs allege upon information and belief that [the ILECs] have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.” Id., ¶51, App. 27.[Footnote 2] The United States District Court for the Southern District of New York dismissed the complaint for failure to state a claim upon which relief can be granted. The District Court acknowledged that “plaintiffs may allege a conspiracy by citing instances of parallel business behavior that suggest an agreement,” but emphasized that “while ‘[c]ircumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy[, …] “conscious parallelism” has not yet read conspiracy out of the Sherman Act entirely.’ ” 313 F. Supp. 2d 174, 179 (2003) (quoting Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537, 541 (1954); alterations in original). Thus, the District Court understood that allegations of parallel business conduct, taken alone, do not state a claim under §1; plaintiffs must allege additional facts that “ten[d] to exclude independent self-interested conduct as an explanation for defendants’ parallel behavior.” 313 F. Supp. 2d, at 179. The District Court found plaintiffs’ allegations of parallel ILEC actions to discourage competition inadequate because “the behavior of each ILEC in resisting the incursion of CLECs is fully explained by the ILEC’s own interests in defending its individual territory.” Id., at 183. As to the ILECs’ supposed agreement against competing with each other, the District Court found that the complaint does not “alleg[e] facts … suggesting that refraining from competing in other territories as CLECs was contrary to [the ILECs’] apparent economic interests, and consequently [does] not rais[e] an inference that [the ILECs’] actions were the result of a conspiracy.” Id., at 188. The Court of Appeals for the Second Circuit reversed, holding that the District Court tested the complaint by the wrong standard. It held that “plus factors are not required to be pleaded to permit an antitrust claim based on parallel conduct to survive dismissal.” 425 F. 3d 99, 114 (2005) (emphasis in original). Although the Court of Appeals took the view that plaintiffs must plead facts that “include conspiracy among the realm of ‘plausible’ possibilities in order to survive a motion to dismiss,” it then said that “to rule that allegations of parallel anticompetitive conduct fail to support a plausible conspiracy claim, a court would have to conclude that there is no set of facts that would permit a plaintiff to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence.” Ibid. We granted certiorari to address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct, 547 U. S. ___ (2006), and now reverse. II A Because §1 of the Sherman Act “does not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy,” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 775 (1984), “[t]he crucial question” is whether the challenged anticompetitive conduct “stem[s] from independent decision or from an agreement, tacit or express,” Theatre Enterprises, 346 U. S., at 540. While a showing of parallel “business behavior is admissible circumstantial evidence from which the fact finder may infer agreement,” it falls short of “conclusively establish[ing] agreement or … itself constitut[ing] a Sherman Act offense.” Id., at 540–541. Even “conscious parallelism,” a common reaction of “firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions” is “not in itself unlawful.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993); see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) (“The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1”); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655, 672 (1962) (“[M]ere interdependence of basic price decisions is not conspiracy”). The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g., AEI-Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related Publication 06–08, pp. 3–4 (2006) (discussing problem of “false positives” in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiff’s offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986). B This case presents the antecedent question of what a plaintiff must plead in order to state a claim under §1 of the Sherman Act. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U. S. 41, 47 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F. 3d 247, 251 (CA7 1994), a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U. S. 265, 286 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure §1216, pp. 235–236 (3d ed. 2004) (hereinafter Wright & Miller) (“[T]he pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”),[Footnote 3] on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002); Neitzke v. Williams, 490 U. S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U. S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”). In applying these general standards to a §1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.[Footnote 4] And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that a recovery is very remote and unlikely.” Ibid. In identifying facts that are suggestive enough to render a §1 conspiracy plausible, we have the benefit of the prior rulings and considered views of leading commentators, already quoted, that lawful parallel conduct fails to bespeak unlawful agreement. It makes sense to say, therefore, that an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Hence, when allegations of parallel conduct are set out in order to make a §1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action. The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” A statement of parallel conduct, even conduct consciously undertaken, needs some setting suggesting the agreement necessary to make out a §1 claim; without that further circumstance pointing toward a meeting of the minds, an account of a defendant’s commercial efforts stays in neutral territory. An allegation of parallel conduct is thus much like a naked assertion of conspiracy in a §1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of “entitle[ment] to relief.” Cf. DM Research, Inc. v. College of Am. Pathologists, 170 F. 3d 53, 56 (CA1 1999) (“[T]erms like ‘conspiracy,’ or even ‘agreement,’ are border-line: they might well be sufficient in conjunction with a more specific allegation—for example, identifying a written agreement or even a basis for inferring a tacit agreement, … but a court is not required to accept such terms as a sufficient basis for a complaint”).[Footnote 5] We alluded to the practical significance of the Rule 8 entitlement requirement in Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336 (2005), when we explained that something beyond the mere possibility of loss causation must be alleged, lest a plaintiff with “ ‘a largely groundless claim’ ” be allowed to “ ‘take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.’ ” Id., at 347 (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 741 (1975)). So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, “ ‘this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.’ ” 5 Wright & Miller §1216, at 233–234 (quoting Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (Haw. 1953)); see also Dura, supra, at 346; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc., 289 F. Supp. 2d 986, 995 (ND Ill. 2003) (Posner, J., sitting by designation) (“[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase”). Thus, it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, cf. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464, 473 (1962), but quite another to forget that proceeding to antitrust discovery can be expensive. As we indicated over 20 years ago in Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 528, n. 17 (1983), “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.” See also Car Carriers, Inc. v. Ford Motor Co., 745 F. 2d 1101, 1106 (CA7 1984) (“[T]he costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint”); Note, Modeling the Effect of One-Way Fee Shifting on Discovery Abuse in Private Antitrust Litigation, 78 N. Y. U. L. Rev. 1887, 1898–1899 (2003) (discussing the unusually high cost of discovery in antitrust cases); Manual for Complex Litigation, Fourth, §30, p. 519 (2004) (describing extensive scope of discovery in antitrust cases); Memorandum from Paul V. Niemeyer, Chair, Advisory Committee on Civil Rules, to Hon. Anthony J. Scirica, Chair, Committee on Rules of Practice and Procedure (May 11, 1999), 192 F. R. D. 354, 357 (2000) (reporting that discovery accounts for as much as 90 percent of litigation costs when discovery is actively employed). That potential expense is obvious enough in the present case: plaintiffs represent a putative class of at least 90 percent of all subscribers to local telephone or high-speed Internet service in the continental United States, in an action against America’s largest telecommunications firms (with many thousands of employees generating reams and gigabytes of business records) for unspecified (if any) instances of antitrust violations that allegedly occurred over a period of seven years. It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through “careful case management,” post at 4, given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side. See, e.g., Easterbrook, Discovery as Abuse, 69 B. U. L. Rev. 635, 638 (1989) (“Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves”). And it is self-evident that the problem of discovery abuse cannot be solved by “careful scrutiny of evidence at the summary judgment stage,” much less “lucid instructions to juries,” post, at 4; the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings. Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no “ ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ ” to support a §1 claim. Dura, 544 U. S., at 347 (quoting Blue Chip Stamps, supra, at 741; alteration in Dura).[Footnote 6] Plaintiffs do not, of course, dispute the requirement of plausibility and the need for something more than merely parallel behavior explained in Theatre Enterprises, Monsanto, and Matsushita, and their main argument against the plausibility standard at the pleading stage is its ostensible conflict with an early statement of ours construing Rule 8. Justice Black’s opinion for the Court in Conley v. Gibson spoke not only of the need for fair notice of the grounds for entitlement to relief but of “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U. S., at 45–46. This “no set of facts” language can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings; and the Court of Appeals appears to have read Conley in some such way when formulating its understanding of the proper pleading standard, see 425 F. 3d, at 106, 114 (invoking Conley’s “no set of facts” language in describing the standard for dismissal).[Footnote 7] On such a focused and literal reading of Conley’s “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery. So here, the Court of Appeals specifically found the prospect of unearthing direct evidence of conspiracy sufficient to preclude dismissal, even though the complaint does not set forth a single fact in a context that suggests an agreement. 425 F. 3d, at 106, 114. It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case, see Dura, 544 U. S., at 347 (quoting Blue Chip Stamps, 421 U. S., at 741); Mr. Micawber’s optimism would be enough. Seeing this, a good many judges and commentators have balked at taking the literal terms of the Conley passage as a pleading standard. See, e.g., Car Carriers, 745 F. 2d, at 1106 (“Conley has never been interpreted literally” and, “[i]n practice, a complaint … must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory” (internal quotation marks omitted; emphasis and omission in original); Ascon Properties, Inc. v. Mobil Oil Co., 866 F. 2d 1149, 1155 (CA9 1989) (tension between Conley’s “no set of facts” language and its acknowledgment that a plaintiff must provide the “grounds” on which his claim rests); O’Brien v. DiGrazia, 544 F. 2d 543, 546, n. 3 (CA1 1976) (“[W]hen a plaintiff … supplies facts to support his claim, we do not think that Conley imposes a duty on the courts to conjure up unpleaded facts that might turn a frivolous claim of unconstitutional … action into a substantial one”); McGregor v. Industrial Excess Landfill, Inc., 856 F. 2d 39, 42–43 (CA6 1988) (quoting O’Brien’s analysis); Hazard, From Whom No Secrets Are Hid, 76 Tex. L. Rev. 1665, 1685 (1998) (describing Conley as having “turned Rule 8 on its head”); Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 463–465 (1986) (noting tension between Conley and subsequent understandings of Rule 8). We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion’s preceding summary of the complaint’s concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. See Sanjuan, 40 F. 3d, at 251 (once a claim for relief has been stated, a plaintiff “receives the benefit of imagination, so long as the hypotheses are consistent with the complaint”); accord, Swierkiewicz, 534 U. S., at 514; National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 256 (1994); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 249–250 (1989); Hishon v. King & Spalding, 467 U. S. 69, 73 (1984). Conley, then, described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint’s survival.[Footnote 8] III When we look for plausibility in this complaint, we agree with the District Court that plaintiffs’ claim of conspiracy in restraint of trade comes up short. To begin with, the complaint leaves no doubt that plaintiffs rest their §1 claim on descriptions of parallel conduct and not on any independent allegation of actual agreement among the ILECs. Supra, at 4. Although in form a few stray statements speak directly of agreement,[Footnote 9] on fair reading these are merely legal conclusions resting on the prior allegations. Thus, the complaint first takes account of the alleged “absence of any meaningful competition between [the ILECs] in one another’s markets,” “the parallel course of conduct that each [ILEC] engaged in to prevent competition from CLECs,” “and the other facts and market circumstances alleged [earlier]”; “in light of” these, the complaint concludes “that [the ILECs] have entered into a contract, combination or conspiracy to prevent competitive entry into their … markets and have agreed not to compete with one another.” Complaint ¶51, App. 27.[Footnote 10] The nub of the complaint, then, is the ILECs’ parallel behavior, consisting of steps to keep the CLECs out and manifest disinterest in becoming CLECs themselves, and its sufficiency turns on the suggestions raised by this conduct when viewed in light of common economic experience.[Footnote 11] We think that nothing contained in the complaint invests either the action or inaction alleged with a plausible suggestion of conspiracy. As to the ILECs’ supposed agreement to disobey the 1996 Act and thwart the CLECs’ attempts to compete, we agree with the District Court that nothing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each ILEC intent on keeping its regional dominance. The 1996 Act did more than just subject the ILECs to competition; it obliged them to subsidize their competitors with their own equipment at wholesale rates. The economic incentive to resist was powerful, but resisting competition is routine market conduct, and even if the ILECs flouted the 1996 Act in all the ways the plaintiffs allege, see id., ¶47, App. 23–24, there is no reason to infer that the companies had agreed among themselves to do what was only natural anyway; so natural, in fact, that if alleging parallel decisions to resist competition were enough to imply an antitrust conspiracy, pleading a §1 violation against almost any group of competing businesses would be a sure thing. The complaint makes its closest pass at a predicate for conspiracy with the claim that collusion was necessary because success by even one CLEC in an ILEC’s territory “would have revealed the degree to which competitive entry by CLECs would have been successful in the other territories.” Id., ¶50, App. 26–27. But, its logic aside, this general premise still fails to answer the point that there was just no need for joint encouragement to resist the 1996 Act; as the District Court said, “each ILEC has reason to want to avoid dealing with CLECs” and “each ILEC would attempt to keep CLECs out, regardless of the actions of the other ILECs.” 313 F. Supp. 2d, at 184; cf. Kramer v. Pollock-Krasner Foundation, 890 F. Supp. 250, 256 (SDNY 1995) (while the plaintiff “may believe the defendants conspired … , the defendants’ allegedly conspiratorial actions could equally have been prompted by lawful, independent goals which do not constitute a conspiracy”).[Footnote 12] Plaintiffs’ second conspiracy theory rests on the competitive reticence among the ILECs themselves in the wake of the 1996 Act, which was supposedly passed in the “ ‘hop[e] that the large incumbent local monopoly companies … might attack their neighbors’ service areas, as they are the best situated to do so.’ ” Complaint ¶38, App. 20 (quoting Consumer Federation of America, Lessons from 1996 Telecommunications Act: Deregulation Before Meaningful Competition Spells Consumer Disaster, p. 12 (Feb. 2000). Contrary to hope, the ILECs declined “ ‘to enter each other’s service territories in any significant way,’ ” Complaint ¶38, App. 20, and the local telephone and high speed Internet market remains highly compartmentalized geographically, with minimal competition. Based on this state of affairs, and perceiving the ILECs to be blessed with “especially attractive business opportunities” in surrounding markets dominated by other ILECs, the plaintiffs assert that the ILECs’ parallel conduct was “strongly suggestive of conspiracy.” Id., ¶40, App. 21. But it was not suggestive of conspiracy, not if history teaches anything. In a traditionally unregulated industry with low barriers to entry, sparse competition among large firms dominating separate geographical segments of the market could very well signify illegal agreement, but here we have an obvious alternative explanation. In the decade preceding the 1996 Act and well before that, monopoly was the norm in telecommunications, not the exception. See Verizon Communications Inc. v. FCC, 535 U. S. 467, 477–478 (2002) (describing telephone service providers as traditional public monopolies). The ILECs were born in that world, doubtless liked the world the way it was, and surely knew the adage about him who lives by the sword. Hence, a natural explanation for the noncompetition alleged is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same thing. In fact, the complaint itself gives reasons to believe that the ILECs would see their best interests in keeping to their old turf. Although the complaint says generally that the ILECs passed up “especially attractive business opportunit[ies]” by declining to compete as CLECs against other ILECs, Complaint ¶40, App. 21, it does not allege that competition as CLECs was potentially any more lucrative than other opportunities being pursued by the ILECs during the same period,[Footnote 13] and the complaint is replete with indications that any CLEC faced nearly insurmountable barriers to profitability owing to the ILECs’ flagrant resistance to the network sharing requirements of the 1996 Act, id., ¶47; App. 23–26. Not only that, but even without a monopolistic tradition and the peculiar difficulty of mandating shared networks, “[f]irms do not expand without limit and none of them enters every market that an outside observer might regard as profitable, or even a small portion of such markets.” Areeda & Hovenkamp ¶307d, at 155 (Supp. 2006) (commenting on the case at bar). The upshot is that Congress may have expected some ILECs to become CLECs in the legacy territories of other ILECs, but the disappointment does not make conspiracy plausible. We agree with the District Court’s assessment that antitrust conspiracy was not suggested by the facts adduced under either theory of the complaint, which thus fails to state a valid §1 claim.[Footnote 14] Plaintiffs say that our analysis runs counter to Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508 (2002), which held that “a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).” They argue that just as the prima facie case is a “flexible evidentiary standard” that “should not be transposed into a rigid pleading standard for discrimination cases,” Swierkiewicz, supra, at 512, “transpos[ing] ‘plus factor’ summary judgment analysis woodenly into a rigid Rule 12(b)(6) pleading standard … would be unwise,” Brief for Respondents 39. As the District Court correctly understood, however, “Swierkiewicz did not change the law of pleading, but simply re-emphasized … that the Second Circuit’s use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules’ structure of liberal pleading requirements.” 313 F. Supp. 2d, at 181 (citation and footnote omitted). Even though Swierkiewicz’s pleadings “detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination,” the Court of Appeals dismissed his complaint for failing to allege certain additional facts that Swierkiewicz would need at the trial stage to support his claim in the absence of direct evidence of discrimination. Swierkiewicz, 534 U. S., at 514. We reversed on the ground that the Court of Appeals had impermissibly applied what amounted to a heightened pleading requirement by insisting that Swierkiewicz allege “specific facts” beyond those necessary to state his claim and the grounds showing entitlement to relief. Id., at 508. Here, in contrast, we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. * * * The judgment of the Court of Appeals for the Second Circuit is reversed, and the cause is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The 1984 divestiture of AT&T’s local telephone service created seven Regional Bell Operating Companies. Through a series of mergers and acquisitions, those seven companies were consolidated into the four ILECs named in this suit: BellSouth Corporation, Qwest Communications International, Inc., SBC Communications, Inc., and Verizon Communications, Inc. (successor-in-interest to Bell Atlantic Corporation). Complaint ¶21, App. 16. Together, these ILECs allegedly control 90 percent or more of the market for local telephone service in the 48 contiguous States. Id., ¶48, App. 26. Footnote 2 In setting forth the grounds for §1 relief, the complaint repeats these allegations in substantially similar language: “Beginning at least as early as February 6, 1996, and continuing to the present, the exact dates being unknown to Plaintiffs, Defendants and their co-conspirators engaged in a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets by, among other things, agreeing not to compete with one another and to stifle attempts by others to compete with them and otherwise allocating customers and markets to one another in violation of Section 1 of the Sherman Act.” Id., ¶64, App. 30–31. Footnote 3 The dissent greatly oversimplifies matters by suggesting that the Federal Rules somehow dispensed with the pleading of facts altogether. See post, at 10 (opinion of Stevens, J.) (pleading standard of Federal Rules “does not require, or even invite, the pleading of facts”). While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant “set out in detail the facts upon which he bases his claim,” Conley v. Gibson, 355 U. S. 41, 47 (1957) (emphasis added), Rule 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only “fair notice” of the nature of the claim, but also “grounds” on which the claim rests. See 5 Wright & Miller §1202, at 94, 95 (Rule 8(a) “contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader’s “bare averment that he wants relief and is entitled to it”). Footnote 4 Commentators have offered several examples of parallel conduct allegations that would state a §1 claim under this standard. See, e.g., 6 Areeda & Hovenkamp ¶1425, at 167–185 (discussing “parallel behavior that would probably not result from chance, coincidence, independent responses to common stimuli, or mere interdependence unaided by an advance understanding among the parties”); Blechman, Conscious Parallelism, Signalling and Facilitating Devices: The Problem of Tacit Collusion Under the Antitrust Laws, 24 N. Y. L. S. L. Rev. 881, 899 (1979) (describing “conduct [that] indicates the sort of restricted freedom of action and sense of obligation that one generally associates with agreement”). The parties in this case agree that “complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason” would support a plausible inference of conspiracy. Brief for Respondents 37; see also Reply Brief for Petitioners 12. Footnote 5 The border in DM Research was the line between the conclusory and the factual. Here it lies between the factually neutral and the factually suggestive. Each must be crossed to enter the realm of plausible liability. Footnote 6 The dissent takes heart in the reassurances of plaintiffs’ counsel that discovery would be “ ‘ “phased” ’ ” and “limited to the existence of the alleged conspiracy and class certification.” Post, at 24. But determining whether some illegal agreement may have taken place between unspecified persons at different ILECs (each a multibillion dollar corporation with legions of management level employees) at some point over seven years is a sprawling, costly, and hugely time-consuming undertaking not easily susceptible to the kind of line drawing and case management that the dissent envisions. Perhaps the best answer to the dissent’s optimism that antitrust discovery is open to effective judicial control is a more extensive quotation of the authority just cited, a judge with a background in antitrust law. Given the system that we have, the hope of effective judicial supervision is slim: “The timing is all wrong. The plaintiff files a sketchy complaint (the Rules of Civil Procedure discourage fulsome documents), and discovery is launched. A judicial officer does not know the details of the case the parties will present and in theory cannot know the details. Discovery is used to find the details. The judicial officer always knows less than the parties, and the parties themselves may not know very well where they are going or what they expect to find. A magistrate supervising discovery does not—cannot—know the expected productivity of a given request, because the nature of the requester’s claim and the contents of the files (or head) of the adverse party are unknown. Judicial officers cannot measure the costs and benefits to the requester and so cannot isolate impositional requests. Requesters have no reason to disclose their own estimates because they gain from imposing costs on rivals (and may lose from an improvement in accuracy). The portions of the Rules of Civil Procedure calling on judges to trim back excessive demands, therefore, have been, and are doomed to be, hollow. We cannot prevent what we cannot detect; we cannot detect what we cannot define; we cannot define ‘abusive’ discovery except in theory, because in practice we lack essential information.” Easterbrook, Discovery as Abuse, 69 B. U. L. Rev. 635, 638–639 (1989). Footnote 7 The Court of Appeals also relied on Chief Judge Clark’s suggestion in Nagler v. Admiral Corp., 248 F. 3d 319 (CA2 1957), that facts indicating parallel conduct alone suffice to state a claim under §1. 425 F. 3d, at 114 (citing Nagler, supra, at 325). But Nagler gave no explanation for citing Theatre Enterprises (which upheld a denial of a directed verdict for plaintiff on the ground that proof of parallelism was not proof of conspiracy) as authority that pleading parallel conduct sufficed to plead a Sherman Act conspiracy. Now that Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984), and Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), have made it clear that neither parallel conduct nor conscious parallelism, taken alone, raise the necessary implication of conspiracy, it is time for a fresh look at adequacy of pleading when a claim rests on parallel action. Footnote 8 Because Conley’s “ ‘no set of facts’ ” language was one of our earliest statements about pleading under the Federal Rules, it is no surprise that it has since been “cited as authority” by this Court and others. Post, at 8. Although we have not previously explained the circumstances and rejected the literal reading of the passage embraced by the Court of Appeals, our analysis comports with this Court’s statements in the years since Conley. See Dura, 544 U. S., at 347 (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 741 (1975); (requiring “ ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ ” to support the claim (alteration in Dura)); Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 526 (1983) (“It is not … proper to assume that [the plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged”); Wilson v. Schnettler, 365 U. S. 381, 383 (1961) (“In the absence of … an allegation [that the arrest was made without probable cause] the courts below could not, nor can we, assume that respondents arrested petitioner without probable cause to believe that he had committed … a narcotics offense”). Nor are we reaching out to decide this issue in a case where the matter was not raised by the parties, see post, at 10, since both the ILECs and the Government highlight the problems stemming from a literal interpretation of Conley’s “no set of facts” language and seek clarification of the standard. Brief for Petitioners 27–28; Brief for United States as Amicus Curiae 22–25; see also Brief for Respondents 17 (describing “[p]etitioners and their amici” as mounting an “attack on Conley’s ‘no set of facts’ standard”). The dissent finds relevance in Court of Appeals precedents from the 1940s, which allegedly gave rise to Conley’s “no set of facts” language. See post, at 11–13. Even indulging this line of analysis, these cases do not challenge the understanding that, before proceeding to discovery, a complaint must allege facts suggestive of illegal conduct. See, e.g., Leimer v. State Mut. Life Assur. Co., 108 F. 2d 302, 305 (CA8 1940) (“ ‘[I]f, in view of what is alleged, it can reasonably be conceived that the plaintiffs … could, upon a trial, establish a case which would entitle them to … relief, the motion to dismiss should not have been granted’ ”); Continental Collieries, Inc. v. Shober, 130 F. 2d 631, 635 (CA3 1942) (“No matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it”). Rather, these cases stand for the unobjectionable proposition that, when a complaint adequately states a claim, it may not be dismissed based on a district court’s assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder. Cf. Scheuer v. Rhodes, 416 U. S. 232, 236 (1974) (a district court weighing a motion to dismiss asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”). Footnote 9 See Complaint ¶¶51, 64, App. 27, 30–31 (alleging that ILECs engaged in a “contract, combination or conspiracy” and agreed not to compete with one another). Footnote 10 If the complaint had not explained that the claim of agreement rested on the parallel conduct described, we doubt that the complaint’s references to an agreement among the ILECs would have given the notice required by Rule 8. Apart from identifying a seven-year span in which the §1 violations were supposed to have occurred (i.e., “[b]eginning at least as early as February 6, 1996, and continuing to the present,” id., ¶64, App. 30), the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies. This lack of notice contrasts sharply with the model form for pleading negligence, Form 9, which the dissent says exemplifies the kind of “bare allegation” that survives a motion to dismiss. Post, at 6. Whereas the model form alleges that the defendant struck the plaintiff with his car while plaintiff was crossing a particular highway at a specified date and time, the complaint here furnishes no clue as to which of the four ILECs (much less which of their employees) supposedly agreed, or when and where the illicit agreement took place. A defendant wishing to prepare an answer in the simple fact pattern laid out in Form 9 would know what to answer; a defendant seeking to respond to plaintiffs’ conclusory allegations in the §1 context would have little idea where to begin. Footnote 11 The dissent’s quotations from the complaint leave the impression that plaintiffs directly allege illegal agreement; in fact, they proceed exclusively via allegations of parallel conduct, as both the District Court and Court of Appeals recognized. See 313 F. Supp. 2d 174, 182 (SDNY 2003); 425 F. 3d 99, 102–104 (CA 2005). Footnote 12 From the allegation that the ILECs belong to various trade associations, see Complaint ¶46, App. 23, the dissent playfully suggests that they conspired to restrain trade, an inference said to be “buttressed by the common sense of Adam Smith.” Post, at 22, 25–26. If Adam Smith is peering down today, he may be surprised to learn that his tongue-in-cheek remark would be authority to force his famous pinmaker to devote financial and human capital to hire lawyers, prepare for depositions, and otherwise fend off allegations of conspiracy; all this just because he belonged to the same trade guild as one of his competitors when their pins carried the same price tag. Footnote 13 The complaint quoted a reported statement of Qwest’s CEO, Richard Notebaert, to suggest that the ILECs declined to compete against each other despite recognizing that it “ ‘might be a good way to turn a quick dollar.’ ” ¶42, App. 22 (quoting Chicago Tribune, Oct. 31, 2002, Business Section, p. 1). This was only part of what he reportedly said, however, and the District Court was entitled to take notice of the full contents of the published articles referenced in the complaint, from which the truncated quotations were drawn. See Fed. Rule Evid. 201. Notebaert was also quoted as saying that entering new markets as a CLEC would not be “a sustainable economic model” because the CLEC pricing model is “just … nuts.” Chicago Tribune, Oct. 31, 2002, Business Section, p. 1 (cited at Complaint ¶42, App. 22). Another source cited in the complaint quotes Notebaert as saying he thought it “unwise” to “base a business plan” on the privileges accorded to CLECs under the 1996 Act because the regulatory environment was too unstable. Chicago Tribune, Dec. 19, 2002, Business Section, p. 2 (cited at Complaint ¶45, App. 23). Footnote 14 In reaching this conclusion, we do not apply any “heightened” pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished “ ‘by the process of amending the Federal Rules, and not by judicial interpretation.’ ” Swierkiewicz v. Sorema N. A., 534 U. S. 506, 515 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993)). On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than Rule 8 requires. Fed. Rules Civ. Proc. 9(b)–(c). Here, our concern is not that the allegations in the complaint were insufficiently “particular[ized]”, ibid.; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs’ entitlement to relief plausible.
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551.US.205
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Having failed to file a timely notice of appeal from the Federal District Court’s denial of habeas relief, petitioner Bowles moved to reopen the filing period pursuant to Federal Rule of Appellate Procedure 4(a)(6), which allows a district court to grant a 14-day extension under certain conditions, see 28 U. S. C. §2107(c). The District Court granted Bowles’ motion but inexplicably gave him 17 days to file his notice of appeal. He filed within the 17 days allowed by the District Court, but after the 14-day period allowed by Rule 4(a)(6) and §2107(c). The Sixth Circuit held that the notice was untimely and that it therefore lacked jurisdiction to hear the case under this Court’s precedent. Held: Bowles’ untimely notice of appeal—though filed in reliance upon the District Court’s order—deprived the Sixth Circuit of jurisdiction. Pp. 2–10. (a) The taking of an appeal in a civil case within the time prescribed by statute is “mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 61 (per curiam). There is a significant distinction between time limitations set forth in a statute such as §2107, which limit a court’s jurisdiction, see, e.g., Kontrick v. Ryan, 540 U. S. 443, 453, and those based on court rules, which do not, see, e.g., id., at 454. Arbaugh v. Y & H Corp., 546 U. S. 500, 505, and Scarborough v. Principi, 541 U. S. 401, 314, distinguished. Because Congress decides, within constitutional bounds, whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them. See United States v. Curry, 6 How. 106, 113. And when an “appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.” Id., at 113. The resolution of this case follows naturally from this reasoning. Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in §2107(c), Bowles’ failure to file in accordance with the statute deprived the Court of Appeals of jurisdiction. And because Bowles’ error is one of jurisdictional magnitude, he cannot rely on forfeiture or waiver to excuse his lack of compliance. Pp. 4–8. (b) Bowles’ reliance on the “unique circumstances” doctrine, rooted in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215 (per curiam) and applied in Thompson v. INS, 375 U. S. 384 (per curiam), is rejected. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the doctrine is illegitimate. Harris Truck Lines and Thompson are overruled to the extent they purport to authorize an exception to a jurisdictional rule. Pp. 8–9. 432 F. 3d 668, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
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In this case, a District Court purported to extend a party’s time for filing an appeal beyond the period allowed by statute. We must decide whether the Court of Appeals had jurisdiction to entertain an appeal filed after the statutory period but within the period allowed by the District Court’s order. We have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature. Accordingly, we hold that petitioner’s untimely notice—even though filed in reliance upon a District Court’s order—deprived the Court of Appeals of jurisdiction. I In 1999, an Ohio jury convicted petitioner Keith Bowles of murder for his involvement in the beating death of Ollie Gipson. The jury sentenced Bowles to 15 years to life imprisonment. Bowles unsuccessfully challenged his conviction and sentence on direct appeal. Bowles then filed a federal habeas corpus application on September 5, 2002. On September 9, 2003, the District Court denied Bowles habeas relief. After the entry of final judgment, Bowles had 30 days to file a notice of appeal. Fed. Rule App. Proc. 4(a)(1)(A); 28 U. S. C. §2107(a). He failed to do so. On December 12, 2003, Bowles moved to reopen the period during which he could file his notice of appeal pursuant to Rule 4(a)(6), which allows district courts to extend the filing period for 14 days from the day the district court grants the order to reopen, provided certain conditions are met. See §2107(c). On February 10, 2004, the District Court granted Bowles’ motion. But rather than extending the time period by 14 days, as Rule 4(a)(6) and §2107(c) allow, the District Court inexplicably gave Bowles 17 days—until February 27—to file his notice of appeal. Bowles filed his notice on February 26—within the 17 days allowed by the District Court’s order, but after the 14-day period allowed by Rule 4(a)(6) and §2107(c). On appeal, respondent Russell argued that Bowles’ notice was untimely and that the Court of Appeals therefore lacked jurisdiction to hear the case. The Court of Appeals agreed. It first recognized that this Court has consistently held the requirement of filing a timely notice of appeal is “mandatory and jurisdictional.” 432 F. 3d 668, 673 (CA6 2005) (citing Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 264 (1978)). The court also noted that courts of appeals have uniformly held that Rule 4(a)(6)’s 180-day period for filing a motion to reopen is also mandatory and not susceptible to equitable modification. 432 F. 3d, at 673 (collecting cases). Concluding that “the fourteen-day period in Rule 4(a)(6) should be treated as strictly as the 180-day period in that same Rule,” id., at 676, the Court of Appeals held that it was without jurisdiction. We granted certiorari, 549 U. S. ___ (2006), and now affirm. II According to 28 U. S. C. §2107(a), parties must file notices of appeal within 30 days of the entry of the judgment being appealed. District courts have limited authority to grant an extension of the 30-day time period. Relevant to this case, if certain conditions are met, district courts have the statutory authority to grant motions to reopen the time for filing an appeal for 14 additional days. §2107(c). Rule 4 of the Federal Rules of Appellate Procedure carries §2107 into practice. In accord with §2107(c), Rule 4(a)(6) describes the district court’s authority to reopen and extend the time for filing a notice of appeal after the lapse of the usual 30 days: “(6) Reopening the Time to File an Appeal. “The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: “(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier; “(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and “(C) the court finds that no party would be prejudiced.” (Emphasis added.)[Footnote 1] It is undisputed that the District Court’s order in this case purported to reopen the filing period for more than 14 days. Thus, the question before us is whether the Court of Appeals lacked jurisdiction to entertain an appeal filed outside the 14-day window allowed by §2107(c) but within the longer period granted by the District Court. A This Court has long held that the taking of an appeal within the prescribed time is “mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 61 (1982) (per curiam) (internal quotation marks omitted);[Footnote 2] accord, Hohn v. United States, 524 U. S. 236, 247 (1998); Torres v. Oakland Scavenger Co., 487 U. S. 312, 314–315 (1988); Browder, supra, at 264. Indeed, even prior to the creation of the circuit courts of appeals, this Court regarded statutory limitations on the timing of appeals as limitations on its own jurisdiction. See Scarborough v. Pargoud, 108 U. S. 567, 568 (1883) (“[T]he writ of error in this case was not brought within the time limited by law, and we have consequently no jurisdiction”); United States v. Curry, 6 How. 106, 113 (1848) (“[A]s this appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction”). Reflecting the consistency of this Court’s holdings, the courts of appeals routinely and uniformly dismiss untimely appeals for lack of jurisdiction. See, e.g., Atkins v. Medical Dept. of Augusta Cty. Jail, No. 06–7792, 2007 WL 1048810 (CA4, Apr. 4, 2007) (per curiam) (unpublished); see also 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3901, p. 6 (2d ed. 1992) (“The rule is well settled that failure to file a timely notice of appeal defeats the jurisdiction of a court of appeals”). In fact, the author of today’s dissent recently reiterated that “[t]he accepted fact is that some time limits are jurisdictional even though expressed in a separate statutory section from jurisdictional grants, see, e.g., … §2107 (providing that notice of appeal in civil cases must be filed ‘within thirty days after the entry of such judgment’).” Barnhart v. Peabody Coal Co., 537 U. S. 149, 160, n. 6 (2003) (majority opinion of Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., inter alios) (citation omitted). Although several of our recent decisions have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules, none of them calls into question our longstanding treatment of statutory time limits for taking an appeal as jurisdictional. Indeed, those decisions have also recognized the jurisdictional significance of the fact that a time limitation is set forth in a statute. In Kontrick v. Ryan, 540 U. S. 443 (2004), we held that failure to comply with the time requirement in Federal Rule of Bankruptcy Procedure 4004 did not affect a court’s subject-matter jurisdiction. Critical to our analysis was the fact that “[n]o statute … specifies a time limit for filing a complaint objecting to the debtor’s discharge.” 540 U. S., at 448. Rather, the filing deadlines in the Bankruptcy Rules are “ ‘procedural rules adopted by the Court for the orderly transaction of its business’ ” that are “ ‘not jurisdictional.’ ” Id., at 454 (quoting Schacht v. United States, 398 U. S. 58, 64 (1970)). Because “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction,” 540 U. S., at 452 (citing U. S. Const., Art. III, §1), it was improper for courts to use “the term ‘jurisdictional’ to describe emphatic time prescriptions in rules of court,” 540 U. S., at 454. See also Eberhart v. United States, 546 U. S. 12 (2005) (per curiam). As a point of contrast, we noted that §2107 contains the type of statutory time constraints that would limit a court’s jurisdiction. 540 U. S., at 453, and n. 8.[Footnote 3] Nor do Arbaugh v. Y & H Corp., 546 U. S. 500 (2006), or Scarborough v. Principi, 541 U. S. 401 (2004), aid petitioner. In Arbaugh, the statutory limitation was an employee-numerosity requirement, not a time limit. 546 U. S., at 505. Scarborough, which addressed the availability of attorney’s fees under the Equal Access to Justice Act, concerned “a mode of relief … ancillary to the judgment of a court” that already had plenary jurisdiction. 541 U. S., at 413. This Court’s treatment of its certiorari jurisdiction also demonstrates the jurisdictional distinction between court-promulgated rules and limits enacted by Congress. According to our Rules, a petition for a writ of certiorari must be filed within 90 days of the entry of the judgment sought to be reviewed. See this Court’s Rule 13.1. That 90-day period applies to both civil and criminal cases. But the 90-day period for civil cases derives from both this Court’s Rule 13.1 and 28 U. S. C. §2101(c). We have repeatedly held that this statute-based filing period for civil cases is jurisdictional. See, e.g., Federal Election Comm’n v. NRA Political Victory Fund, 513 U. S. 88, 90 (1994). Indeed, this Court’s Rule 13.2 cites §2101(c) in directing the Clerk not to file any petition “that is jurisdictionally out of time.” (Emphasis added.) On the other hand, we have treated the rule-based time limit for criminal cases differently, stating that it may be waived because “[t]he procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion … .” Schacht, supra, at 64.[Footnote 4] Jurisdictional treatment of statutory time limits makes good sense. Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider. Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them. See Curry, 6 How., at 113. Put another way, the notion of “ ‘subject-matter’ ” jurisdiction obviously extends to “ ‘classes of cases … falling within a court’s adjudicatory authority,’ ” Eberhart, supra, at 16 (quoting Kontrick, supra, at 455), but it is no less “jurisdictional” when Congress forbids federal courts from adjudicating an otherwise legitimate “class of cases” after a certain period has elapsed from final judgment. The resolution of this case follows naturally from this reasoning. Like the initial 30-day period for filing a notice of appeal, the limit on how long a district court may reopen that period is set forth in a statute, 28 U. S. C. §2107(c). Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in §2107(c), that limitation is more than a simple “claim-processing rule.” As we have long held, when an “appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.” Curry, supra, at 113. Bowles’ failure to file his notice of appeal in accordance with the statute therefore deprived the Court of Appeals of jurisdiction. And because Bowles’ error is one of jurisdictional magnitude, he cannot rely on forfeiture or waiver to excuse his lack of compliance with the statute’s time limitations. See Arbaugh, supra, at 513–514. B Bowles contends that we should excuse his untimely filing because he satisfies the “unique circumstances” doctrine, which has its roots in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215 (1962) (per curiam). There, pursuant to then-Rule 73(a) of the Federal Rules of Civil Procedure, a District Court entertained a timely motion to extend the time for filing a notice of appeal. The District Court found the moving party had established a showing of “excusable neglect,” as required by the Rule, and granted the motion. The Court of Appeals reversed the finding of excusable neglect and, accordingly, held that the District Court lacked jurisdiction to grant the extension. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 303 F. 2d 609, 611–612 (CA7 1962). This Court reversed, noting “the obvious great hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect.’ ” 371 U. S., at 217. Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the “unique circumstances” doctrine is illegitimate. Given that this Court has applied Harris Truck Lines only once in the last half century, Thompson v. INS, 375 U. S. 384 (1964) (per curiam), several courts have rightly questioned its continuing validity. See, e.g., Panhorst v. United States, 241 F. 3d 367, 371 (CA4 2001) (doubting “the continued viability of the unique circumstances doctrine”). See also Houston v. Lack, 487 U. S. 266, 282 (1988) (Scalia, J., dissenting) (“Our later cases … effectively repudiate the Harris Truck Lines approach …”). See also Osterneck v. Ernst & Whinney, 489 U. S. 169, 170 (1989) (referring to “the so-called ‘unique circumstances’ exception” to the timely appeal requirement). We see no compelling reason to resurrect the doctrine from its 40-year slumber. Accordingly, we reject Bowles’ reliance on the doctrine, and we overrule Harris Truck Lines and Thompson to the extent they purport to authorize an exception to a jurisdictional rule. C If rigorous rules like the one applied today are thought to be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits. Even narrow rules to this effect would give rise to litigation testing their reach and would no doubt detract from the clarity of the rule. However, congressionally authorized rulemaking would likely lead to less litigation than court-created exceptions without authorization. And in all events, for the reasons discussed above, we lack present authority to make the exception petitioner seeks. III The Court of Appeals correctly held that it lacked jurisdiction to consider Bowles’ appeal. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 The Rule was amended, effective December 1, 2005, to require that notice be pursuant to Fed. Rule Civ. Proc. 77(d). The substance is otherwise unchanged. Footnote 2 Griggs and several other of this Court’s decisions ultimately rely on United States v. Robinson, 361 U. S. 220, 229 (1960), for the proposition that the timely filing of a notice of appeal is jurisdictional. As the dissent notes, we have recently questioned Robinson’s use of the term “jurisdictional.” Post, at 2 (opinion of Souter, J.) Even in our cases criticizing Robinson, however, we have noted the jurisdictional significance of the fact that a time limit is set forth in a statute, see infra, at 5–6, and have even pointed to §2107 as a statute deserving of jurisdictional treatment. Infra, at 6. Additionally, because we rely on those cases in reaching today’s holding, the dissent’s rhetoric claiming that we are ignoring their reasoning is unfounded. Regardless of this Court’s past careless use of terminology, it is indisputable that time limits for filing a notice of appeal have been treated as jurisdictional in American law for well over a century. Consequently, the dissent’s approach would require the repudiation of a century’s worth of precedent and practice in American courts. Given the choice between calling into question some dicta in our recent opinions and effectively overruling a century’s worth of practice, we think the former option is the only prudent course. Footnote 3 At least one federal court of appeals has noted that Kontrick and Eberhart “called … into question” the “longstanding assumption” that the timely filing of a notice of appeal is a jurisdictional requirement. United States v. Sadler, 480 F. 3d 932, 935 (CA9 2007). That court nonetheless found that “[t]he distinction between jurisdictional rules and inflexible but not jurisdictional timeliness rules drawn by Eberhart and Kontrick turns largely on whether the timeliness requirement is or is not grounded in a statute.” Id., at 936. Footnote 4 The dissent minimizes this argument, stating that the Court understood §2101(c) as jurisdictional “in the days when we used the term imprecisely.” Post, at 4, n. 4. The dissent’s apathy is surprising because if our treatment of our own jurisdiction is simply a relic of the old days, it is a relic with severe consequences. Just a few months ago, the Clerk, pursuant to this Court’s Rule 13.2, refused to accept a petition for certiorari submitted by Ryan Heath Dickson because it had been filed one day late. In the letter sent to Dickson’s counsel, the Clerk explained that “[w]hen the time to file a petition for a writ of certiorari in a civil case . . . has expired, the Court no longer has the power to review the petition.” Letter from William K. Suter, Clerk of Court, to Ronald T. Spriggs (Dec. 28, 2006). Dickson was executed on April 26, 2007, without any Member of this Court having even seen his petition for certiorari. The rejected certiorari petition was Dickson’s first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion.
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